•PUNISHMENT  BY  DEATH- 


AUTHORITY   AND   EXPEDIENCY, 


BY       Q 

GEORGE  B.  CHEEVER,  D.D. 


Td  KaA'jOj  6    £%oi/  rt6\tt  Tr&\aiffn& 
jjtfi  TTOTC  XtJcroi  Qebv  ttiTov^at. 

I  Will  never  implore  the  Deity  to  slacken  that  avenging  effort  which  hath 
the  good  of  the  state  in  view. 

CEdiptu  TyrannuS)  879,  880, 


V 


NEW    YORK: 
JOHN    WILEY,    161    BROADWAY, 

AND  13  PATERNOSTER  ROW,  LONDON, 
1849. 


CONTENTS. 


PART    i . 


CHAPTER  I.  PAOI 

The  argument  from  Scripture, — The  original  ordinance  consid- 
ered,    :  ...  123 

CHAPTER  II. 

Argument  from  Scripture  continued,  Circumstances  of  the  hu- 
man race,  when  this  ordinance  was  promulgated,  .  .131 

CHAPTER  III. 

Argument  from  Scripture  continued, — Universality  and  compre- 
hensiveness of  this  ordinance,  ..*....  137 

CHAPTER  IV. 

Argument  from  Scripture  continued. — The  Mosaic  Statutes,  a 
luminous  commentary  upon  this  ordinance,  ....  142 

CHAPTER  V. 

Argument  from  the  New  Testament. — The  ordinance  not  abro- 
gated, but  confirmed, — Proof  from  Paul's  writings  and  expe- 
rience,  146 

CHAPTER  VI. 
Proof  from  the  consentaneousness  of  Divine  Providence,         .    153 

CHAPTER  VII. 

Argument  from  Scripture  continued.— Purpose  and  design  of 
this  ordinance. — Its  sanction  of  the  civil  magistracy. — Of  the 
Origin  of  Government. — Of  its  power  to  take  life. — Benevo- 
lent design  of  this  ordinance, 159 

CHAPTER  VIII. 

Argument  from  Scripture  connected  with  the  argument  from 
expediency. — Wisdom  and  necessity  of  this  ordinance. — Com- 
monness of  the  spirit  of  Cain  in  human  society,  .  .  .172 

CHAPTER  IX. 

Argument  from  Expediency  continued. — Consentaneousness  of 
the  Law  of  Nature  with  this  Enactment. — The  Power  of  Con- 
science, and  the  Necessity  of  Righteous  Law  to  sustain  it,  178 


CONTENTS, 


CHAPTER  X.  pAaK 

Objects, ^4ka~J2ujMA&meni-4^^^  constitutes  the 

Perfection  of  Criminal  Jurisprudence  1— The  Theories  of  God- 
win and  Hume,-— Difference  between  Justice  and  Revenge,       185 

CHAPTER  XI. 

The  Ends  of  Punishment  further  considered,— False  View  of 
the  Matter. — Difference  between  Punishment  in  this  Life  and 
in  the  Life  to  come,  ........  192 

CHAPTER  XIL 

txtfearfulness  and  Efficacy  of  the  Punishment  by  Death.— Causes 
of  the  Dread  of  Death.— Prospect  of  the  Guilty  in  Eternity.— 
Objection  considered,  of  cutting  off  the  Criminal  in  his  Sins. 
• — The  Answer  of  Grotius. — Answer  from  Fact  and  Experi- 
ence.— Also  from  the  Divine  Providence  and  from  Expedi- 
ency.— Objection  considered,  of  the  unwillingness  of  juries 
to  convict  in  cases  of  murder 5 190 

CHAPTER  XIII. 

Occasion  of  the  prejudice  against  Capital  Punishment.  Inju- 
rious consequences  of  the  severity  of  sanguinary  codes. — 
Difference  between  the  reformation  of  penal  codes,  and  the 
annihilation  of  penalty. — The  abrogation  of  the  punishment 
of  death  a  premium  on  the  crime  of  murder. — Recklessness 
of  the  desire  of  concealment, 20? 

CHAPTER  XIV. 

\  Proposed  plan  of  Imprisonment  for  Life,  instead  of  the  Penalty 

of  Death,  considered, 217 

CHAPTER  XV. 

Tendency  of  the  common  reasonings  against  Capital  Punish- 
ment, to  weaken  the  sanctions  of  the  Divine  Government. — 
Retributive  justice  a  reality. — Prophetic  aspect  of  the  penalty 
of  death  for  murder. — Power  and  solemnity  of  the  argument 
from  analogy.— Conclusion,  ..»,„,.  2*20 


INTRODUCTION. 


Otf  the  Sabbath  succeeding  the  execution  of  two  men  fbf 
piracy,  in  New  Orleans,  in  the  year  1820,  an  eloquent  minis- 
ter of  the  Gospel,  Rev-,  Sylvester  Larned,  preached  a  sermon 
with  reference  to  the  solemn  spectacle,  on  the  execution  of  the 
penalty  of  the  Divine  Law.  He  opened  his  discourse  with 
the  following  remarks  *^> 

"  The  principle,  upon  which  the  recent  execution  was 
grounded,  is  one  of  the  most  impressive  and  imposing  charac-* 
ter«  In  the  judicial  act  of  hurrying  two  fellow*beings  into 
eternity,  we  have  not  been  looking  on  the  infliction  of  revenge, 
we  have  not  been  viewing  a  sacrifice  to  the  mere  excitement 
of  public  feeling,  we  have  not  been  witnessing  the  fate  of  per- 
sons too  abandoned  for  reformation.  None  of  this*  The  one 
single  principle  presiding  over  the  necessity  and  tlie  sternness 
of  so  mournful  a  scene  has  been  the  unbending  majesty  of  law ; 
of  law,  which  knows  none  of  the  impulses  of  mercy,  which 
puts  away  from  it  every  sympathy  with  the  suffering  it  de- 
mands* While  then  the  laws  of  man  evince  so  much  sever- 
ity ^  suppose  we  carry  our  contemplation  higher,  and  look  at 
the  similar  relation,  in  which  all  of  us  stand  to  the  laws  of  the 
Godhead.  Do  not  call  this  an  unnatural  transition  to  another 
subject.  It  is  essentially  the  same  subject.  If  there  be  any 
truth  in  the  Bible,  **  sentence  has  passed  upon  all  men  to  con- 
demnation," and  surely,  when  sentence  has  issued,  we  need 


120  INTRODUCTION. 


hot  be  lo,ld;tbat;  ^orfcewhere  a  law  must  exist,  and  that  it  has 
been  violated,  and  that  it  has  put  forth  its  penalties  against 
;  tl^ttcansgrassqr'.  /***,..  .Upon  those  who  have  had  the  means  of 
knowing  the  Book  of  God's  Revelation,  it  will  enforce  all  its 
penalties,  and  inflict  all  its  punishments.  It  will  move  for- 
ward to  complete  and  rigid  execution  in  spite  of  the  ridicule, 
the  neglect,  and  the  complaints  of  mankind." 

The  view  here  taken,  the  connections  opened  out,  and  the 
light  shed  upon  the  subject,  were  most  salutary  and  impres- 
sive. The  effect  produced,  manifested  the  salutariness  of  the 
punishment  of  death  for  murder,  upon  a  community  where 
men  are  disposed,  instead  of  endeavouring  to  bring  contempt 
and  odium  upon  the  law  and  its  penalty,  to  consider  it  in  its 
true  and  proper  character  and  relations. 

We  have  endeavoured  so  to  present  it  in  these  Essays. 
We  have  taken  the  Divine  statute,  and  examined  the  light 
shed  upon  it  in  the  whole  course  of  the  Divine  revelation,  to- 
.  gether  with  its  connections  with  the  Divine  government.  We 
have  also  gone  into  a  full  discussion  of  the  question  of  its  ex- 
pediency. We  have  taken  up  objections,  and  gone  over  the 
whole  field  of  the  argument.  One  or  two  minor  points  we 
have  not  noted,  but  may  speak  of  them  here. 

It  is  argued  by  our  opponents  that  the  statute  in  Genesis 
is  simple  and  merely  permissive,  but  not  an  injunction.  But 
it  follows,  according  to  this  construction,  that  God  gives  to 
any  and  every  man  the  permission  to  kill  the  murderer. 
Now  God  declares  that  private  revenge  is  sinful ;  "  avenge 
not  yourselves,  but  rather  give  place  unto  wrath."  And  yet 
this  constructive  argument  compels  our  opponents  to  the  as- 
sumption that  God  here  authorizes  any  and  every  individual 
to  take  into  his  own  hands  the  avenging  the  crime  of  murder 


INTRODUCTION.  121 


by  the  death  of  the  murderer.  There  is  no  way  of  avoiding 
this  inconsistency,  but  by  the  interpretation  of  the  statute  as 
belonging  not  to  private  individuals,  but  to  the  magistracy. 
But  if  our  opponents  say  that  it  is  permissive  not  to  individ- 
uals, but  to  governments,  then  we  have,  on  their  own  conces- 
sion, a  complete  divine  sanction  for  this  death  penalty,  if  any 
government  deem  it  expedient. 

There  is  a  remark  of  Schlegel  in  regard  to  the  statutes  in 
the  Old  Testament,  which  is  of  great  weight  in  application  to 
this.  He  observes  that  in  the  writings  of  Moses,  whatever  is 
meant  to  be  a  practical  law  is  expressed  with  the  greatest  ac- 
curacy  and  precision.  This  is  the  case  with  this  statute ;  it 
stands  out  from  the  context  with  the  utmost  clearness  and 
precision,  as  a  command.  And  when  God  says,  At  the  hand 
of  every  man's  brother  will  I  require  the  life  of  man ;  if  you 
ask  how  he  will  require  it,  then  instantly  follows  the  great  en- 
actment, Whoso  sheddeth  man's  blood,  by  man  shall  his 
be  shed. 

It  is  sometimes  said  that  in  that  early  period  there  were  no 
prisons,  and  therefore  it  was  necessary  to  kill  the  murderer, 
because  they  could  not  keep  him.  What  then  could  they  do 
with  the  thief,  the  robber,  the  house-breaker  ?  By  the  same 
reasoning  they  must  kill  him,  because  they  had  no  prisons 
in  which  to  keep  him.  We  think  if  they  could  build  cities, 
they  could  also  build  prisons.  The  state  of  society  in  which 
the  Tower  of  Babel  could  be  erected,  was  not  likely  to  suffer 
for  want  of  a  jail. 

If  this  had  been  the  reason  for  this  statute,  certainly  it  would 
have  been  stated.  The  statute  would  have  run  thus  :  Who- 
so sheddeth  man's  blood,  by  man  shall  his  blood  be  shed,  be- 
cause at  present  there  are  no  prisons  to  confine  him  in.  And 


122  INTRODUCTION. 


it  would  have  been  added  :  As  soon  as  you  are  strong  enough 
to  build  a  jail,  or  to  hew  and  transport  stones  of  a  sufficient 
size  for  a  murderer's  prison,  then  this  statute  must  be  laid 
aside,  there  being  no  longer  any  use  or  necessity  for  it.  If 
this  had  been  the  reason  for  this  statute,  how  happens  it  that 
at  an  after  period,  when  there  was  no  more  deficiency  in  pris- 
ons than  in  thieves  and  murderers,  there  being  abundance  of 
both,  this  very  same  statute  is  re-promulgated,  with  the  ad- 
ditional command  that  in  no  case  whatever  shall  the  penalty 
of  death  to  the  murderer  be  commuted,  but  that  in  every  case, 
without  fail,  the  murderer  shall  be  put  to  death  ?  Was  this 
because  they  had  no  prisons  ? 

In  truth,  in  the  case  of  every  argument  brought  against  this 
statute,  and  every  expedient  by  which  men  would  evade  it, 
we  need  only  turn  to  the  reason  given  for  it  by  Jehovah,  and 
in  a  moment,  in  spite  of  all  sophistry,  its  meaning  is  as  clear 
as  the  day,  its  obligation  is  seen  to  be  perpetual. 


ESSAYS  ON  PUNISHMENT  BY  DEATH. 

PART  FIRST. 
CHAPTER  I. 

THE    ARGUMENT    FROM    SCRIPTURE. THE    ORIGINAL   ORDINANCE 

CONSIDERED. 

THE  argument  from  Scripture  in  favour  of  capital 
punishment,  is  plain  and  powerful.  It  is  easy  to  distin- 
guish between  what  is  local  and  transitory  on  the  one 
hand,  and  what  is  universal  and  permanent  on  the  other. 
We  do  not  resort  to  the  former,  but  confine  ourselves  to 
the  latter.  We  do  not  inquire  concerning  the  social 
or  civil  regulations  of  the  Hebrews,  as  if,  because  they 
possessed  the  divine  sanction  for  themselves,  therefore 
they  are  binding  upon  us ;  at  the  same  time  we  may 
derive  much  instruction  from  their  study.  In  looking 
carefully  for  the  final  causes  of  the  local  Mosaic  enact- 
ments, we  shall  often  have  reason  to  admire  their  wis- 
dom, when  a  superficial  observer  would  set  them  down 
as  capricious  or  unintelligible.  Their  thorough  exam- 
ination requires  much  research  and  discriminating  ob- 
servation ;  and  it  has  come  to  be  a  common  thing,  for 


124  CAPITAL    PUNISHMENT, 

persons  who  have  never  made  the  Antiquities  of  Chris- 
tianity in  any  shape  the  object  of  their  study,  to  speak 
of  the  Mosaic  code  as  "  crude,  cruel,  and  unchristian." 
Now  there  are  four  things  to  be  remarked  of  this 
code,  in  its  particulars. 

1.  The  laws  were  not  those  of  Moses,  but  of  God. 
Jehovah  himself  was  the   Lawgiver,  and  Moses  acted 
simply  as  his  agent  or  minister,  being  in  no  sense  him- 
self a  lawgiver,  as  we  apply  this  title  to  men  like  Solon 
or  Lycurgus.     The  whole  code,  from  beginning  to  end, 
was  framed  by  divine  inspiration,  and  possesses  the  au- 
thority of  the  divine  sanction,   whether  consisting   of 
new  precepts  revealed  for  the  first  time  from  heaven,  or 
of  precepts  already  in  existence,  and  permitted  by  the 
divine  wisdom  to  stand. 

2.  Not  one  of  these  precepts  was  ever  abrogated  by 
our  Saviour,  but  on  the  contrary,  they  were  sustained  and 
sanctioned  by  his  own  declarations  and  example.     His 
own  death  fulfilled,  and  so  abrogated,  the  Jewish  dispen- 
sation ;  but  not  one  of  its  laws  was  abrogated,  not  even 
of  its  typical  and  ceremonial  institutes,  while  he  was  liv- 
ing ;  and  as  to  its  moral  precepts,  they  all,  as  well  as  the 
final  causes  of  them,  were  to  endure  not  merely  to  the 
time  of  his  crucifixion,  when  he  should  say,  It  is  finish- 
ed ;  but  till  heaven  and  earth  should  pass  away,  not  one 
jot  or  tittle  was  to  be  repealed,  till  all  should  be  fulfilled. 

"  Whosoever,  therefore,  shall  break  one  of  these 
least  commandments,  and  shall  teach  men  so,  he  shal] 
be  called  the  least  in  the  kingdom  of  heaven  ;  but  who. 


SPIRIT   OF   THE    MOSAIC    ENACTMENTS.  125 

soever  shall  do  and  teach  them,  the  same  shall  be  called 
great  in  the  kingdom  of  heaven."*  Thus  did  our  bless- 
ed Lord  extend  into  the  Christian  dispensation,  and  con- 
firm arid  repromulgate  there, — as  of  perpetual  obligation 
in  that  kingdom  of  heaven,  which  was  to  have  no  end, — 
the  moral  precepts  of  the  Jewish  dispensation. 

3.  They  contain  the  great  of  law  love,  promulgated 
anew  in  the  Gospel.    It  is  as  really  revealed  in  the  Mosaic 
precepts,  as  it  is  in  our  Saviour's  sermon  on  the  Mount. 
The  spirit  of  courtesy,  kindness,  and  benevolence  pre- 
vailing in  them  is  remarkable ;  their  protection  of  the 
stranger  and  the  poor,  the  fatherless  and  the  widow; 
their  inculcation  of  love  to  God,  love  to  our  neighbour, 
and  kindness  even  to  enemies,  would  have  constituted  in 
the  Jewish  nation,  had  they  obeyed  them,  a  bright  tran- 
script of  the  divine  perfections.     And  as  to  their  penal 
sanctions,  a  learned  and  judicious  writer  has  remarked, 
after  speaking  of  the  offences  punished  capitally  by  the 
Jewish  law,  that  "  in  the  other  penal  laws  of  the  Mosaic 
code,  there  prevails  a  constant  spirit  of  mildness  and 
equity,  unequalled  in  any  other  system  of  jurisprudence, 
ancient  or   modern." — "  The  Jewish   law  adjusted  its 
punishments  more  suitably  to  the  real  degree  of  moral 
depravity  attending  different  species  of  guilt,  than  mod- 
ern codes,  "j- 

4.  They  were,  in  that  age  and  generation,  a  collec- 


*  Matt.  v.  17-19. 

t  GRAVES  on  the  Pentateuch.     Part  II.,  Lect.  3. 

12* 


126  CAPITAL    PUNISHMENT. 

tion  of  superhuman  wisdom,  standing  out  in  such  bright 
contrast  with  the  statutes  of  the  heathen  world,  as  to  con- 
stitute a  most  satisfactory  and  conclusive  demonstration 
of  their  divine  original.  The  calmest  profound  study  of 
them  does  entirely  justify  the  declaration  of  Moses  him- 
self to  his  countrymen  in  reference  to  their  observance  : 
"  Keep  therefore  and  do  them  :  for  this  is  your  wisdom 
and  your  understanding  in  the  sight  of  the  nations,  which 
shall  hear  all  these  statutes,  and  say,  Surely  this  great  na- 
tion is  a  wise  and  understanding  people.  For  what  na- 
tion is  there  so  great,  who  hath  God  so  nigh  unto  them, 
as  the  Lord  our  God  is  in  all  things  that  we  call  upon 
him  for  ?  And  what  nation  is  there  so  great,  that  hath 
statutes  and  judgments  so  righteous,  as  all  this  law, 
which  I  set  before  you  this  day  ?"* 

While,  therefore,  we  do  not  resort  to  this  code  as  the 
foundation  or  necessary  support  of  any  part  of  our  ar- 
gument, we  shall  have  occasion  to  advert  to  it  as  a  source 
of  most  important  light  in  our  examination  of  the  subject. 
Meanwhile,  the  inconsiderate  manner,  in  which  proof 
from  the  Mosaic  books  is  sometimes  pronounced  upon, 
has  seemed  to  demand,  first  of  all,  these  preceding  ob- 
servations. 

The  direct  argument  from  Scripture  commences  with 
the  ordinance  against  bloodshed  communicated  to  Noah ; 
this  being  the  first  instance  of  divine  legislation  with  the 
punishment  of  death  annexed  a.s  its  sanction.  Taken 
with  the  context,  it  reads  thus  :  "  And  surely  your  blood 
*  Deut.  iv.  6-8. 


THE    NOACHIC    STATUTE.  127 

of  your  lives  will  I  require  ;  at  the  hand  of  every  beast 
will  I  require  it,  and  at  the  hand  of  man ;  at  the  hand  of 
every  man's  brother  will  I  require  the  life  of  man. 
Whoso  sheddeth  man's  blood,  by  man  shall  his  blood  be 
shed  :  for  in  the  image  of  God  made  he  man."* 


BLOOD    BE    SHED. 


The  original  of  this  passage  is  as  follows  : 


tnsm  en  ^siti 

•  1  "     T    •  T  TTT  TTT  T       *  1  •• 

literally,  Shedding  man's  blood,  by  man  shall  his  blood  be 
shed.  In  the  Septuagint  translation  the  pronoun  is  dis- 
tinguished, as  in  our  English  translation,  Whoso  sheddeth, 

&C.       *O   CK%£0)v    aifjia   dvdpvarrov,  dvr\    TOV  a'ifiaros    avrov   CK%vOf}creTat. 

Our  common  English  version  is  the  natural  translation 
of  the  Hebrew  construction  ;  any  other  translation  is 
forced  and  unnatural.  If  the  sentence  were  given  forth 
from  our  English  Bible,  Whoso  sheddeth  man's  blood,  &c.. 
to  be  translated  literally  into  the  Hebrew,  the  same  con- 
struction would  be  used  as  is  used  in  the  original  text. 
Our  common  English  version  is  the  one  almost  univer- 
sally sanctioned  ;  and  where  it  is  departed  from,  it  is  not 
to  avoid  the  application  of  the  passage  with  the  penalty 
to  the  murderer,  but  to  extend  and  confirm  it. 

Attempts  have  been  made  to  neutralize  the  power  of 
this  ordinance,  by  the  use  of  the  pronoun  whatsoever 
instead  of  whosoever,  in  the  translation.  We  believe 

*  Gen.  ix.  5,  6. 


128  CAPITAL    PUNISHMENT. 


there  is  not  a  commentator  in  the  world  by  whom  thif 
change  has  been  proposed,  as  by  some  legislators  of  the 
present  time,  with  the  purpose  of  evading  or  altering  the 
obvious  scope  and  meaning  of  the  passage.  It  is  utterly 
without  authority  and  without  foundation. 

Vatablus  has  remarked  on  the  context  of  this  passage,* 
that  to  require  the  blood  of  man  from  the  hand  of  man  is 
simply  a  Hebraism  for  expressing  the  extreme  punish- 
ment of  death  to  be  inflicted  on  the  murderer.  It  avails 
little,  therefore,  to  alter  the  translation  of  the  ordinance 
itself,  where  its  sense  has  been  so  explicitly  given  in  the 
context.  The  Chaldee  paraphrastic  interpretation  of  the 
passage  is  as  follows :  Whoso  sheddeth  man's  blood,  by 
man,  that  is,  by  witnesses,  with  the  sentence  of  the 
judges,  shall  his  blood  be  shed. 

The  German  commentator  Michaelis  chose  to  render 
it  whatsoever  instead  of  whosoever,  simply  in  order  to 
make  it  include  both  man  and  beast,  and  yet  his  opinion 
has  with  some  unfairness  been  quoted  in  such  a  manner 
as  to  make  the  unlearned  reader  conclude  that  Michaelis 
denies  the  doctrine  commonly  received  from  the  passage. 
His  translation  and  commentary  are  as  follows  :  "  What- 
soever creature  sheddeth  human  bloody  be  it  man  or  beast, 
by  man  shall  its  blood  in  like  manner  be  shed,  Gen.  ix.  6 ; 
for  according  to  the  tenor  of  the  preceding  verse,  where 
mention  is  made  of  beasts  as  well  as  men,  and  where 

*  Hebraismus,  Requirere  sanguinem  hominis  de  manu  hominis 
pro  supplicio  extremo  afficere  aliquem  qui  homincm  occiderit,  et 
sanguinem  ejus  fuderit.  VATABLUS  in  Crit.  Sac.  in  Gen.  ix. 


OPINION    OF    ROSENMUELLER.  129 

God  had  said  that  he  would  require  the  blood  of  man 
from  men  as  well  as  beasts,  and,  as  he  himself  declares, 
not  immediately,  but  through  the  instrumentality  of  men 
intrusted  by  him  with  the  commission  of  vengeance,  the 
sixth  is  not  to  be  rendered  whosoever,  but  whatsoever 
sheddeth  man's  blood,  so  as  to  include  beasts  as  well  as 


men."* 

The  translation  of  Luther  accords  with  ours :  Wer 
Menschen  Blut  vergeusst, — Whoso  sheddeth  man's  blood. 
The  Latin  Vulgate  has  the  same  translation,  Quicumquc 
effuderet  humanum  sanguinem.  The  context  makes  this 
translation  as  necessary  as  the  construction. 

We  shall  only  add  a  short  comment  from  one  of  the 
most  eminently  learned  and  impartial  of  the  German 
commentators,  E.  F.  C.  Rosenmueller,  in  which  he 
refers  to  the  opinion  expressed  by  Michaelis  :  "  Because 
tjDiB  is  the  nominative  absolute,  there  are  some  persons, 
who  would  have  it  apply  not  only  to  men,  but  also  to 
beasts,  so  that  it  may  read,  whatsoever  sheddeth  man's 
blood.  But  to  us  the  commonly  received  opinion,  which 
confines  the  application  of  T^tti  to  man  only,  seems  the 
best.  For  the  sacred  writer,  having  in  the  preceding 
verse  spoken  concerning  punishing  both  man  and  beast 
for  the  taking  away  of  life,  repeats  now  in  the  sixth 
verse  the  ordinance  concerning  the  punishment  of  homi- 

*  1st  der  sechste  vers  nicht  zu  ubersetzen :  Wer  Menschenblut 
vergiesst,  sondern,  Was  Menschenblut  vergiesst,  so  dass  die  Thiere 
mit  eingeschlossen  sind.  MICHAELIS.  Commentaries  on  the  Laws 
of  Moses.  Art.  274. 


ft  •— 


130  CAPITAL    PUNISHMENT. 

cide,  on  account  of  that  superior  dignity  of  man,  con- 
cerning which  the  last  words  of  this  verse  are  spoken, 
viz.,  for  in  the  image  of  God  made  he  man."* 

Were  it  necessary  for  the  elucidation  of  this  passage, 
a  vast  body  of  authorities  might  be  brought  forward, 
including  the  names  of  Selden,  Hammond,  Grotius,  Le- 
clerc,  Calvin,  Rivetus,  Matthew  Henry,  Scott,  Dr.  E. 
Robinson,  and  many  others.  Indeed,  the  union  of  the 
tenor  of  the  context  with  the  necessity  of  the  construc- 
tion is  such  as  fairly  to  forbid  any  other  rendering  in  this 
case,  than  that  given  by  our  English  translators.  We 
shall  therefore  pass  to  the  consideration  of  the  circum- 
stances in  which  the  ordinance  was  promulgated. 

*  ROSENMUELLER.  Scholia  in  Gen.  ix.  6 :  Nobis  vulgo  recepta 
sententia  qua  'nBiti  de  homine  duntaxat  capitur,  potior  videtur,  etc. 


CHAPTER  II. 

ARGUMENT  FROM  SCRIPTURE  CONTINUED. — CIRCUMSTANCES  OF  THE  HU- 
MAN RACE,  WHEN  THIS  ORDINANCE  WAS  PROMULGATED. 

THE  circumstances  in  which  Noah  was  placed,  on 
taking  possession  of  the  earth  after  the  deluge,  were  in 
some  respects  very  similar,  in  others  very  dissimilar,  to 
those  of  Adam,  when  just  invested  with  the  sovereignty 
of  the  creation.  A  formal  grant  was  made  to  him  as  to 
Adam.  His  prerogatives  were  settled,  and  his  possession 
confirmed,  in  the  earth  redeemed  from  the  deluge,  in  a 
form  of  benediction  like  that  which  attended  the  first 
proclamation  of  Adam's  Paradisaical  empire.  But  there 
was  this  mighty  difference  : — when  the  earth  was  given 
to  Adam,  there  had  been  no  sin ;  all  was  simplicity  and 
peace,  guilelessness  and  innocence,  fearlessness  and  se- 
curity. There  had  been  no  evil  passions  among  men, 
no  ferocity  among  animals,  no  knowledge  of  death,  no 
fear  of  cruelty  or  violence.  The  earth  brought  forth 
abundantly,  and  men  and  animals  were  sweetly  nourish- 
ed by  its  fruits  and  vegetables.  Now,  there  was  a 
dreadful  change.  There  had  been  sin,  and  death  as  its 
consequence.  The  ground  had  been  cursed  for  man's 
sake,  and  was  to  yield  stintedly,  and  with  much  labour, 
what  at  first  it  yielded  freely,  submissively,  and  abun- 


132  CAPITAL    PUNISHMENT. 


dantly,  of  itself.  There  had  been  murder  and  violence 
on  the  part  of  man  against  his  brother  man,  and  savage- 
ness  and  ferocity  in  the  animal  creation.  All  these  dif- 
ferences were  to  be  remembered  and  provided  for,  in  the 
terms  of  the  new  grant  made  to  Noah  and  his  sons,  and 
the  new  covenant  with  him  and  his  posterity. 

Accordingly  he  was  graciously  assured  against  the 
dread  which  he  might  have  felt  lest  such  a  handful 
of  helpless  beings  should  be  destroyed  from  the  earth  by 
the  increase  and  ferocity  of  the  animals,  that  the  deepest 
fear  of  man  should  be  impressed  upon  the  whole  animal 
creation.  Against  the  dread  of  another  deluge,  whicii 
otherwise  must  have  filled  men's  souls  with  every  storm 
that  swept  across  the  horizon,  Noah  was  assured  that 
God  would  not  again  destroy  the  ground  for  man's  sake, 
would  not  again  bring  the  waters  of  a  flood  over  it  •  but 
that,  while  the  earth  remained,  seed-time  and  harvest, 
cold  and  heat,  summer  and  winter,  day  and  night, 
should  not  cease.  The  benediction  and  command  to  be 
fruitful  and  multiply  and  replenish  the  earth  was  laid 
upon  him,  and  the  grant  of  animal  food  was  made  to 
him,  in  addition  to  the  provision  recorded  for  the  suste- 
nance of  Adam.  This  was  doubtless  intended  in  part 
as  a  compensation  for  the  difficulty  and  scantiness  with 
which,  in  comparison  with  the  luxuriance  and  abun- 
dance of  an  age  of  innocence,  the  earth  yielded  her 
fruit  since  the  curse  because  of  man's  sins.  But  with 
this  grant  there  came  a  prohibition  against  eating  the 
flesh  with  the  blood  thereof,  the  life  thereof;  and  the 


COVENANT   WITH    NOAH.  133 

final  cause  of  this  prohibition  is  exceedingly  solemn  and 
interesting,  as  pointing,  without  any  doubt,  to  that  divine 
atonement  to  be  made  by  blood  for  the  sins  of  the  world ; 
a  prohibition  reiterated  with  great  solemnity  in  the  Mo- 
saic institutions,*  and  intended  to  impress  upon  the  soul 
a  prophetic  sense  of  the  sacredness  of  the  blood  of  \ 
atonement.  "  For  the  life  of  the  flesh  is  in  the  blood : 
and  I  have  given  it  to  you  upon  the  altar,  to  make  an 
atonement  for  your  souls  :  for  it  is  the  blood  that  maketh 
an  atonement  for  the  soul."f 

This  prohibition  introduces  another  provision  in  the 
covenant  with  Noah,  intended  to  secure  him  and  his 
family  against  the  dread,  which  from  past  experience 
they  must  have  entertained,  lest  the  passions  of  men, 
which  had  already  proved  so  ferocious,  should  break  out 
again,  in  universal  violence  and  murder.  God  therefore 
declares  to  Noah  and  his  sons,  as  personating  the  whole 
family  and  race  of  mankind,  that  he  would  require 
their  blood  in  return  for  the  life-blood  which  they  should 
shed  ;  he  would  require  it  of  every  animal,  and  he 
would  require  it  of  every  man ;  at  the  hand  of  every 
man's  brother  would  he  require  the  life  of  man.  If 
any  man  should  shed  the  life-blood  of  his  brother,  the  — 
blood  of  that  man  should,  in  return,  be  required  of  him. 

Here,  if  God  had  proceeded  no  further,  the  assurance 
to  Noah  would  simply  have  conveyed  the  knowledge  of 
what  the  Divine  Being  himself  would  do  in  protecting 

*  Lev.  xvii.  10-14 ;  Deut.  xii.  16,  23.  t  Lev.  xvii.  11. 

13 


134  CAPITAL  PUNISHMENT. 

the  peace  of  human  society,  and  in  avenging,  by  his  own 
providence,  the  murder  of  every  man  by  his  brother 
man.  There  seems  evidently  to  be  a  tacit  reference  to 
the  different  manner  of  his  providence  in  the  case  of 
Cain,  and  an  assurance  to  Noah  that  never  again  should 
the  crime  of  murder  be  punished  so  slightly.  In  the 
case  of  Cain,  when  the  murderer  feared  being  killed  for 
his  crime,  God  made  a  provision  against  it ;  and  from 
the  history  of  Lamech  afterwards,  to  which  we  shall 
more  explicitly  refer,  we  may  suppose  that  this  careful- 
ness grew  into  a  precedent,  and  that  it  was  not  customary 
in  the  antediluvian  world  to  visit  the  crime  of  murder 
with  the  death  of  the  murderer.  Men  indulged  their 
passions  in  every  sort  of  violence,  and  even  the  provi- 
dence of  God  did  not  then  insure  the  return  of  such  vio- 
lence upon  their  own  heads.  Now,  on  the  other  hand, 
God  assures  Noah  that  he  would  himself  exact,  by  his 
own  providence,  the  blood  of  every  man  from  the  man 
who  should  shed  it,  and  would  thus  preserve  the  human 
family  against  being  destroyed  in  its  infancy. 

Such  is  the  introduction  to  the  great  declaration  that 
follows  ;  which  declaration  may  fairly  be  considered  as 
pointing  ultimately  to  the  existence  of  human  govern- 
ment and  law,  and  as  announcing  and  establishing  its 
sanctions  under  all  the  awfulness  and  permanence  of  the 
divine  authority  :  WHOSO  SHEDDETH  MAN'S  BLOOD,  BY 

MAN     SHALL    HIS     BLOOD    BE     SHED.       Some    of    the    most 

learned  and  judicious  commentators  are  united  in  regard- 
ing this  ordinance  as  a  declaration  that  death  by  the  hand 


OPINION    OF   MICHAELIS.  135 

of  the  magistrate  shall  follow  the  commission  of  the 
crime  of  murder;  and  if  so,  then  it  must  be  considered 
as  in  fact  the  divine  institution  and  sanction  of  the  civil 
magistracy.  We  shall  have  occasion  to  revert  to  this 
point  more  explicitly  in  considering  the  purpose  and  de- 
sign of  the  ordinance.  God's  argument  with  Noah  in 
introducing  it  is  this  :  "  Fear  not.  The  Divine  Omnipo- 
tence and  Avenging  Justice  shall  protect  you.  In  mine 
own  overruling  providence  I  will  insure  the  punishment 
of  every  murderer  by  death.  As  a  part  of  this  provi- 
dence I  determine  that  in  the  very  foundation  of  the 
human  government  there  shall  be  laid,  as  its  corner- 
stone, this  ordinance :  Whoso  sheddeth  man's  blood,  by 
man  shall  his  blood  be  shed.  Henceforward  I  ordain 
death  by  the  hand  of  the  magistrate  to  follow  the  com- 
mission of  the  crime  of  murder." 

This  view  of  the  circumstances  of  the  human  race, 
and  this  general  interpretation  of  the  ordinance  with  its 
context  are  sustained  by  Michaelis  in  his  Commentatio 
Prior  de  Poena  Homicidii.  Two  things,  he  observes, 
were  contained  in  this  law  given  to  Noah,  namely,  the 
power  to  proceed  by  capital  punishment  against  the 
homicide,  and  the  imperative  obligation  to  use  that  power. 
God  had  declared  that  he  would  make  inquisition  for 
blood,  and  he  adds  that  he  would  do  it  by  the  instrumen- 
tality of  men,  committing  to  them  the  right  of  death 
against  the  murderer.  It  was  thus  that  the  Divine 
and  most  benignant  Legislator  bound  together  arid 


136  CAPITAL   PUNISHMENT. 

strengthened  the  society  of  the  first  postdiluvian  common- 
wealth.* 

*  Nee  tamen  capitis  poenam  ab  homicidis  repetendam  permittebat 
modo,  sed  et  imperabat  lex  divina.  Dixerat  Deus  se  qusesiturum 
sanguinem  hominum,  additque  per  homines,  quibus  jus  necis  in  hom- 
ieidas  concedat,  se  id  facturum,  etc. — MICHAELIS,  Commentatio 
prior  de  Poena  Homicidii.  §§  17,  20. 


CHAPTER  III. 

ARGUMENT    FROM    SCRIPTURE    CONTINUED. UNIVERSALITY    AND    COM- 
PREHENSIVENESS  OF   THIS   ORDINANCE. 

THESE  being  the  circumstances  of  the  race,  and  the 
context  of  this  ordinance,  we  proceed  to  deduce  and  es- 
tablish its  universality  and  comprehensiveness.  On  the 
face  of  it,  this  point  is  so  clear,  that  it  would  scarcely 
seem  to  need  an  argument.  It  is  a  signal  part  of  the 
formal  benediction,  law,  and  covenant,  under  which 
Noah,  as  a  second  father  of  the  human  race,  was  in- 
vested, like  Adam,  for  his  posterity,  with  the  sovereignty 
of  the  animated  creation.  It  is  not  confined  to  any  partic- 
ular family,  tribe,  or  people ;  it  is  not  a  covenant  with  * 
God's  chosen  people,  so  called,  but  with  the  whole  hu- 
man family.  It  is  not  dependent  on  the  Mosaic  institu- 
tions, derives  from  them  no  part  of  its  authority,  perma- 
nence, or  sacredness,  but  would  be  just  as  perfect,  clear, 
and  authoritative,  if  they  were  all  swept  from  existence.  • 
It  is  an  ordinance  as  extensive  and  comprehensive  as  is 
the  promise  that  while  the  earth  continued,  heat  and  cold, 
day  and  night,  summer  and  winter,  seed-time  and  har- 
vest, should  not  fail.  It  is  an  ordinance  just  as  universal 
for  all  mankind,  as  the  permission  to  eat  animal  food  ;  no 
more  to  be  restricted  to  a  particular  people,  or  consid- 
13* 


138  CAPITAL    PUNISHMENT. 

ered  as  connected  merely  with  the  after  application  of 
the  Levitical  law,  than  the  declaration  that  the  dread  of 
man  should  be  upon  the  beasts  of  the  forest  is  to  be  con- 
sidered as  a  promise  made  only  to  the  Hebrews  ;  no  more 
than  the  declaration  that  the  blood  of  man  shall  be  re- 
quired of  every  beast  is  to  be  considered  as  applying 
only  to  particular  races  of  animals,  or  to  animals  occu- 
pying a  particular  portion  of  the  earth,  the  land  of  Canaan 
for  example.  The  ordinance  is  just  as  universal  and 
comprehensive,  as  were  to  be  the  posterity  of  Noah ;  it 
was  given  to  him  for  all  his  sons,  and  all  their  races.  It 
is  neither  Jewish,  nor  Gentile,  nor  Christian ;  neither  be- 
longing to  one  dispensation  nor  another ;  but  it  is  an  or- 
dinance of  humanity  and  of  civil  society,  the  world  over. 
Men  might  as  well  tell  us,  when  we  see  the  rainbow  in 
the  sky,  that  we  behold  no  memento  of  God's  loving- 
kindness  after  the  deluge,  as  that,  when  we  see  this  or- 
dinance in  human  governments,  we  must  not  trace  its 
obligation  and  authority  to  that  primeval  statute  revealed 
to  Noah. 

There  is  a  wonderful  explicitness,  compactness,  and 
authority  in  the  terms  in  which  it  is  expressed  :  it  stands 
forth  in  these  respects,  as  prominently  from  the  context,  as 
'  the  commandments  on  the  tables  of  stone  stood  forth  amidst 
the  ceremonial  law  and  observances.  Its  manner  is  like 
the  imperative  comprehensiveness  of  the  command, 
Thou  shalt  have  no  other  gods  before  me.  Indeed,  the 
same  mode  of  arguing  that  would  annihilate  the  general 
obligation  of  the  ordinance  given  to  Noah,  would  also 


UNIVERSALITY  OF  THE  STATUTE.         139 

displace  the  decalogue  itself  from  its  throne  of  divine 
authority  and  supremacy.  We  believe  that  this  enact- 
ment possesses  the  same  rank  with  reference  to  all  penal 
enactments,  that  the  commandments  in  the  decalogue 
possess,  with  reference  to  all  moral  duties.  It  stands  at 
the  head  of  the  science  of  social  and  criminal  jurispru- 
dence, just  as  the  statutes  in  the  decalogue  stand  at  the 
head  of  the  science  of  Christian  ethics. 

Now  if  any  man  will  deny  the  evident  universality  of 
this  ordinance,  it  is  for  such  an  one  to  show  proof  either 
of  its  limitation  or  its  abrogation ;  but  this  cannot  be 
done.  Where  is  the  law,  or  the  authority,  repealing  it  ? 
Will  any  man  assert  that  it  was  binding  only  upon  Shem 
and  his  posterity,  or  that  in  process  of  time  it  became 
obsolete  with  the  other  lines  of  Noah's  posterity,  and  con- 
tinued only  with  the  Hebrews  ?  If  its  obligation  ceased 
at  any  time,  or  with  any  race,  when  did  its  obligation 
cease,  and  by  what  sign  or  message  from  God  did  men 
know  it  ?  These  are  questions  that  no  man  can  answer. 
Not  a  trace  of  the  abrogation  of  this  ordinance  can  be 
found,  either  in  the  course  of  God's  providence,  or"  in  the 
tenor  of  God's  word ;  either  in  sacred  or  profane  his- 
tory ;  either  in  the  Old  or  the  New  Testament.  On 
the  contrary,  there  are  plain  intimations  of  its  continu- 
ing in  force  through  every  successive  dispensation.  \ 

The  reason,  which  we  have  not  yet  considered,  given 
by  the  Divine  Being  for  the  ordinance  itself,  is  one  of  the 
strongest  arguments  for  its  perpetual  obligation  :  For  in 
the  image  of  God  made  he  man.  Now  whether  we  take 


140  CAPITAL    PUNISHMENT. 

this,  as  some  have  done,  to  signify  that  image  of  God  as 
a  governor  and  legislator,  of  which  the  magistracy,  di- 
vinely constituted,  is  a  representation ;  or,  according  to 
the  more  common  and  probable  opinion,  that  image  in  the 
individual  being,  of  which  God  speaks  in  the  beginning ; 
in  any  case  it  is  manifest  that  the  reason  it  contains  is 
not  transitory,  not  a  matter  of  expediency,  not  limited  to 
any  age,  country,  or  generation,  but  coeval  and  coessen- 
tial  with  the  race.  It  recognizes  in  the  crime  of  murder, 
not  an  injury  to  man  merely,  or  to  society,  but  to  God ; 
the  highest  possible  violation  of  his  authority,  the  great- 
est possible  insult,  through  his  violated  image  ;  a  degree 
of  turpitude  and  enormity,  of  which  the  Divine  Majesty 
requires  the  highest  possible  punishment  of  human  law.* 
The  reason  of  the  ordinance  appeals  to  the  attributes  of 
God,  and  to  the  existence  of  man  in  God's  image ;  the 
obligation  of  the  ordinance  endures,  as  long  as  the  reason 
on  which  it  is  founded ;  consequently,  it  is  perpetual. 
As  long  as  there  are  men  in  God's  image,  so  long  will  the 
ordinance  be  in  force,  that  whoso  shcddeth  man's  blood, 
by  man  shall  his  blood  be  shed  ;  for  in  the  image  of  God 
made  he  man.  Calvin,  in  his  commentaries,  has  well 

*  Q,uum  homo  ad  Dei  imaginem  sit  factus,  sequum  est  ut  qui  Dei 
imaginem  violavit  et  destruxit,  occidatur,  cum  Dei  imagini  injuriam 
faciens,  ipsum  Deum,  illius  auctorem,  petierit. — ROSENMUELLER, 
Scholia  in  Gen.  ix. 

Imago  Dei  non  potest  impune  destrui,  Deus  enim  ipse  laeditur,  in 
imagine  sua  laesa ;  ergo  ab  homicidio,  et  destructione  imaginis  Dei, 
abstinendum  est. — A.  RIVETUS  in  loc.  Opera,  Tom.  I.  p.  237. 


OPINION    OF    CALVIN.  141 

observed,  that  though  men  are  unworthy  of  his  wonder, 
ful  goodness,  the  Divine  Being  doth  here  reveal  the 
grounds  of  his  care  for  the  sacredness  of  human  life ; 
and  most  sedulously  should  the  doctrine  of  this  passage 
be  marked,  that  no  person  can  injure  his  neighbour,  but 
he  injures  God  ;  a  truth,  which,  if  men  would  remem- 
ber, there  would  be  much  less  violence  in  human  so- 
ciety.* 

*  Sedulo  autera  notanda  est  doctrina,  neminem  posse  fratribus  suif 
esse  injurium,  quin  Deum  ipsum  Iredat.  Quoe  si  probe  in  animis 
nostris  infixa  esset,  longe  tardiores  essemus  ad  inferendas  injurias. 
CALVIN  in  Gen.  ix.  Opera,  Tom.  I.  p.  53. 


CHAPTER  IV. 

ARGUMENT    FROM    SCRIPTURE     CONTINUED. — THE    MOSAIC    STATUTES,    A 
LUMINOUS    COMMENTARY    UPON    THIS   ORDINANCE. 

THE  whole  Jewish  code  proceeds  on  the  ground  of  this 
previous  legislation.  To  that  code  we  do  not  resort  for 
argument ;  it  is  unnecessary  ;  we  do  not  rest  the  right 
or  duty  of  capital  punishment  on  any  part  of  it ;  never- 
theless, it  forms  a  luminous  commentary  on  the  ordinance 
revealed  to  Noah.  The  existence  of  this  ordinance  is 
just  as  much  taken  for  granted,  as  the  continued  author- 
ity of  the  permission  to  eat  animal  food ;  nor  was  there 
any  more  need  of  formally  republishing  it,  than  of  pre- 
fixing to  the  decalogue  the  acknowledged  genealogy  of 
the  Hebrews  from  Abraham.  In  the  thirty-fifth  chapter 
of  Numbers,  in  the  last  five  verses,  there  is  a  manifest 
reference  to  this  ordinance,  and  reasons  are  given  for  the 
urgency  and  particularity  of  the  divine  requisitions  of 
blood  for  blood,  which  intimate  that,  apart  from  any  con- 
siderations of  expediency,  there  is  a  heinousness  in  the 
crime  of  murder,  that  cannot  be  endured ;  that  demands 
and  must  have  present  expiation  in  the  blood  of  the  mur- 
derer, or  the  land  itself  is  so  defiled  that  God  cannot 
inhabit  it.  "  Whoso  killeth  any  person,  the  murderer 
shall  be  put  to  death  by  the  mouth  of  witnesses  ;  but  one 


TENOR  OF  THE  JEWISH  CODE.          143 

witness  shall  not  testify  against  any  person  to  cause  him 
to  die.  Moreover,  ye  shall  take  no  satisfaction  for  the 
life  of  a  murderer,  which  is  guilty  of  death  ;  but  he 
shall  surely  be  put  to  death.  So  ye  shall  not  pollute  the 
land  wherein  ye  are  ;  for  blood,  it  defileth  the  land  :  and 
the  land  cannot  be  cleansed  of  the  blood  that  is  shed 
therein,  but  by  the  blood  of  him  that  shed  it.  Defile  not, 
therefore,  the  land  which  ye  shall  inhabit,  wherein  I 
dwell ;  for  I  the  Lord  dwell  among  the  children  of  Is- 
rael."* Some  other  passages  having  reference  to  this 
subject  'in  the  Pentateuch  we  place  at  the  bottom  of  the 
page,  to  be  consulted  at  the  pleasure  of  the  reader. •(• 

In  one  of  these  passages  it  is  said,  "  If  a  man  come 
presumptuously  upon  his  neighbour,  to  slay  him  with 
guile,  thou  shalt  take  him  from  mine  altar,  that  he  may 
die."  No  refuge  was  to  avail  him.  From  the  very 
altar  of  God,  though  he  had  fled  thither,  he  was  to  be 
taken  and  "surely  put  to  death."  Again:  "  Thine  eye 
shall  not  pity  him,  but  thou  shalt  put  away  the  guilt  of 
innocent  blood  from  Israel,  that  it  may  go  well  with 
thee."  The  tenor  of  these  declarations,  their  point,  ex- 
plicitness,  urgency  and  severity,  would  incline  us  to  think 
that  God  had  observed  at  that  period  the  same  unwilling- 
ness to  execute  the  penalty  of  the  Noachic  ordinance, 
the  same  false  sensibility,  and  the  same  tendency  to  in 
fidelity,  which  at  intervals  prevails  in  society  at  the  pres- 

*  Numbers  xxxv.  30-34. 

t  Exod.  xxi.  12,  13,  14.     Levit.  xxiv.  17.     Numbers  xxxv.  16 
seq.     Deut.  xix.  10  ;  xiii.  3. 


144  CAPITAL    PUNISHMENT. 

ent  day.  He  was  resolved  to  extirpate  this  feeling,  and 
to  make  the  obligation  to  punish  the  guilt  of  innocent 
blood,  as  unqualified  and  peremptory  as  any  duty  in  the 
decalogue.  The  same  testimony  as  to  the  guilt  of  "  in- 
nocent blood,"  a  guilt  so  regarded  by  the  Divine  Being, 
that  in  no  circumstances  would  he  permit  it  to  go  un- 
punished by  death,  is  borne  throughout  the  Scriptures. 
It  is  one  of  the  sacred  proverbs,  "  A  man  that  doth  vi- 
olence to  the  blood  of  any  person  shall  flee  to  the  pit ; 
let  no  man  slay  him."  In  revenging  this  guilt  of  blood- 
shed, it  is  declared  by  the  prophets  that  "  the  stone  shall 
cry  out  of  the  wall,  and  the  beam  out  of  the  timber  shall 
answer  it." 

If  we  are  not  mistaken,  there  was  a  high  and  solemn 
end,  which  is  not  distinctly  noticed,  in  all  this  training 
of  the  consciences  of  men  on  this  subject ;  in  making 
human  blood  so  sacred,  in  affixing  to  the  human  life  the 
value  of  a  price  so  inestimable.  It  is  not  improbable 
that  all  the  strains  of  prophetical  preaching  on  this  point, 
and  all  the  multiplied  enactments  in  regard  to  it,  and  all 
the  terrible  sternness  with  which  they  were  insisted  on, 
were  partly  intended  to  prepare  the  mind  for  the  gran- 
deur and  solemnity  of  divine  truth  in  the  atonement. 
God  would  prevent  the  cheapening  of  human  life,  in  or- 
der that  the  value  of  the  sacrifice  of  Christ's  life  might 
not  be  diminished  in  men's  estimation.  In  very  truth, 
had  no  law  ever  been  promulgated  annexing  the  penalty 
of  death  to  the  crime  of  murder,  it  is  not  too  much  to 
say  that  the  sacrifice  of  Christ  upon  the  cross  would 


IMPREGNABLE  STRENGTH    OF  THE  ARGUMENT.         145 

God  intended  that  our  conceptions  of  the  unspeakable  love 
of  Christ  in  laying  down  his  own  life  for  his  enemies 
should  not  be  weakened,  but  assisted,  by  our  habitual  as- 
sociations, by  the  whole  world's  prevailing  habits  of 
thought  and  feeling  on  this  subject. 

We  insist  strongly  on  the  sure,  emphatic  manner,  in 
which  God  reasserts  and  establishes  the  death-penalty 
for  murder,  hedging  the  enactment  about  by  so  many 
solemn  and  stern  provisions  against  its  violation  or  neg- 
lect, that  the  man  must  be  wilfully  blind  who  can  deny  it. 

"  YE  SHALL  TAKE  NO  SATISFACTION  FOR  THE  LIFE  OF  A 
MURDERER  WHICH  IS  GUILTY  OF  DEATH  ;  BUT  HE  SHALL 

SURELY  BE  PUT  TO  DEATH."  This  is  God's  legislation ; 
no  man  can  deny  it.  It  is  his  legislation  hundreds  of 
years  after  the  law  promulgated  to  the  world  through 
Noah,  and  it  is  intended  to  reiterate  and  establish  the 
law  of  death  for  murder  among  the  Hebrews  so  firm- 
ly, that  there  may  remain  no  room  for  the  shadow  of  a 
doubt  in  regard  to  the  intention  of  the  law-giver,  and  no 
possibility  of  evading  the  execution  of  the  penalty. 
This  reiteration  of  the  law  by  the  Divine  Being,  is  an 
insurmountable  obstacle  against  the  reasonings  of  those 
men,  who  endeavour  to  deny  that  at  first,  when  God  de- 
clared that  men  should  be  put  to  death  for  murder,  he 
meant  any  such  thing.  \  Will  any  one  have  the  hardi- 
hood to  assert  that  when  God  commanded  that  no  satis- 
faction for  the  life  of  the  murderer  should  be  taken,  but 
he  should  surely  be  put  to  death,  he  meant  that  he 
should  not  be  put  to  death  ? 
14 


CHAPTER  V. 

ARGUMENT  FROM  THE  NEW  TESTAMENT. — THE  ORDINANCE  NOT  AB- 
ROGATED, BUT  CONFIRMED. PROOF  FROM  PAUL'S  WRITINGS  AND  EX- 
PERIENCE 

WE  come  next  to  the  argument  from  the  New  Testa- 
ment ;  and  here  we  find,  both  in  the  letter  and  spirit  of 
the  Gospel,  a  strong  confirmation  of  the  doctrine  taught, 
on  this  subject,  in  the  Old.  We  shall  both  notice  the 
perfectly  groundless  assertion,  that  the  penal  statutes  of 
the  Old  Testament  were  abrogated  by  our  Saviour,  and 
we  shall  entertain  the  question,  How  far  does  the  spirit 
of  the  Christian  dispensation  interfere  with  the  ordinance 
given  to  Noah,  in  authorizing  and  enjoining  a  greater 
mildness  in  the  whole  code  of  penal  inflictions  ?  It  is  as- 
serted that  our  Saviour,  in  his  sermon  on  the  Mount, 
clearly  reprobates  the  vengeful  and  retaliating  tenor  of 
the  laws  before  his  time,  referring  to  one  or  two  in  par- 
ticular :  "  Ye  have  heard  that  it  hath  been  said  by  them 
of  old  time,  An  eye  for  an  eye,  and  a  tooth  for  a  tooth," 
&c.  Here  we  answer, 

1.  That  our  Lord's  teachings  were  not  directed  to  the 
laws  themselves,  either  as  vengeful  or  retaliating  in  an 
improper  sense,  but  to  the  abuse  of  them.  He  had  in 
view  the  correction  of  the  spirit  of  malice  and  private 


ERASMUS  ON  THE  JEWISH  LAW.         147 

revenge ;  the  rebuke  and  removal  of  the  habit  of  indi- 
vidual retaliation,  for  which  the  Jews  most  wickedly 
pleaded  the  sanction  of  laws,  that  were  wisely  given  for 
the  maintenance  of  public  justice.  He  did  not  mean  to 
say  that  the  penalties  of  the  Jewish  law  were  too  severe, 
or  that  they  should  cease  to  be  executed  whenever  jus- 
tice demanded  it ;  but,  that  individuals  should  forgive  in- 
juries, and  should  not,  for  the  sake  of  personal  revenge, 
take  advantage  of  public  law,  in  opposition  to  the  great 
law  of  love,  on  which  hung  all  the  law  and  the  prophets. 
The  provisions  of  the  Jewish  law  were  wise  and  equita- 
ble, and  not  vengeful  or  retaliatory ;  but  the  abuse  of 
them  by  the  selfish  and  malicious  spirit  of  the  Scribes 
and  Pharisees  had  reached  a  degree,  which  demanded  the 
sternest  reprobation.  The  paraphrase  of  Erasmus  on 
this  passage  is  admirable  :  "  Ye  have  heard  what  degree 
of  indulgence  the  law  permitted  to  our  fathers  in  the 
avenging  of  injuries :  an  eye,  it  is  said,  for  an  eye,  and 
a  tooth  for  a  tooth.  For  God  had  known  their  minds 
greedy  of  revenge,  and  therefore  he  restricted  them  to 
certain  rules  to  be  applied  by  the  sentence  of  the  judges ; 
the  man  who  had  maliciously  destroyed  an  eye,  should 
lose  an  eye,  and  he  who  had  destroyed  a  tooth,  should 
lose  a  tooth  ;  for  if  the  angry  mind  had  been  permitted 
to  take  vengeance  without  such  rules,  it  might  often  have 
happened  that  life  would  have  been  taken  for  a  tooth 
broken.  The  law  therefore  was  so  constructed,  that 
justice  might  not  proceed  farther  than  equity.  Now  I 
do  not  abrogate  this  law,  but  confirm  it.  But  I  teach 


148  CAPITAL    PUNISHMENT. 

you  not  to  seek  revenge  ;  not  to  return  injury  for  injury, 
nor  railing  for  railing,  but  contrariwise,  blessing."*  But 
it  is  manifest, 

2.  That  our  Saviour's   teachings  had  no   reference 
whatever,  either  directly  or  by  implication,  to  the  pri- 
meval statute  revealed  to  Noah.     The  change  from  the 
Jewish  dispensation  to  the  Christian  had  nothing  to  do 
with  it ;  men  might  as  well  argue  that  the  divine  au- 
thority of  the  book  of  Genesis  was   annihilated  by  that 
change,  as  that  the  sanction  was  taken  from  this  penal 
ordinance.     What  would  be  thought  of  the  argument, 
that  the  change  of  the  Sabbath  from  the  time  and  man- 
ner of  its  observance  in  the  Jewish  synagogues  to  the 
time  and  manner  of  its  observance  as  the  Lord's  day, 
had  abrogated  the  ancient    law  of  the    decalogue,    to 
honour  the  Sabbath  and  keep  it  holy  ?     But  we  argue, 

3.  If  the  Law  of  Love  in  the  Christian  dispensation 
required  the  abolition  of  this  statute,  the  same  law  must 
have  prevented  its  enactment,  for  our  Lord  draws  that 
law  of  love  from  the  old  dispensation  itself.     But,  it  is 
evident, 

4.  That  both  the  spirit  and  the  precepts  of  Christian- 
ity confirm  it.     The  spirit  of  the  Gospel,  while  it  incul- 
cates  forgiveness    upon   individuals,   approves  and   re- 
quires in  "  the  powers  that  le"  the  infliction  of  just 
penalties  against  offenders,  the  maintenance  of  order, 

*  Desiderii  Erasmi  Roterodami,  Paraphraseon  hi  Novum  Testa- 
mentum.    Tom.  I.  p.  74. 


PRECEPTS  OF  THE  GOSPEL.  149 

security,  and  obedience  to  law.  It  is  remarkable 
that  Paul  brings  together  these  two  duties,  and  insists 
upon  them  with  equal  authority,  in  one  and  the  same 
passage.  He  asserts,  as  clearly  as  language  can  do  it, 
that  the  duty  of  private  forgiveness  does  not  interfere 
with  the  course  of  public  justice  in  the  punishment  by 
death.  In  one  verse  he  says  :  "  Dearly  beloved,  avenge 
not  yourselves,  but  rather  give  place  unto  wrath ;"  and 
then  immediately  he  speaks  of  the  magistrate  as  bearing 
not  the  sword  in  vain,  but  as  "  a  revenger,  as  the  minis- 
ter of  God,  to  execute  wrath  upon  the  evil-doer.3'  Cap- 
ital punishment  then,  and  the  mild  spirit  of  the  Christian 
Dispensation  are  not  incompatible,  but  consistent. 

Besides  this,  the  precepts  of  the  gospel,  in  one  or  two 
instances,  directly  suppose  the  existence  of  the  penalty 
of  death,  and  as  directly  sanction  it.  We  believe  they 
contain  a  manifest  reference  to  the  old  and  well  known 
Noachic  ordinance,  which  had  come  to  be  not  only  a  fun- 
damental law,  but  a  fundamental  proverb  of  society.  Of 
this  nature  is  the  argument  of  the  Saviour  with  Peter  : 
Put  up  again  thy  sword  in  its  place ;  for  all  they  that  take 
the  sword,  shall  perish  ly  the  sword.*  Of  the  same  na- 
ture is  the  declaration  in  the  Apocalypse  :  He  that  kill- 
eth  with  the  sword,  must  le  killed  with  the  sword.^  The 
form  which  these  assertions  take,  is  one  that  supposes  a 
universal  knowledge  and  acknowledgment  of  their  truth 
and  certainty ;  it  is  an  appeal  to  the  authority  of  a 

*  Matt.  xxvi.  52  t  Rev.  xiii.  10. 

14* 


150  CAPITAL   PUNISHMENT. 

known  divine  sanction,  and  to  a  proverbial  sanction, 
which  has  grown  out  of  the  divine ;  which  has  gathered 
a  power  of  incontrovertible  certainty,  from  the  provi- 
dence as  well  as  the  ordinance  of  God. 

We  will  take  next  the  special  argument  of  Paul  on 
this  subject.  "  Let  every  soul  be  subject  unto  the  high- 
er powers.  For  there  is  no  power  but  of  God  :  the 
powers  that  be  are  ordained  of  God.  Whosoever  there- 
fore resisteth  the  power,  resisteth  the  ordinance  of  God : 
and  they  that  resist  shall  receive  to  themselves  damna- 
tion. For  rulers  are  not  a  terror  to  good  works,  but  to 
the  evil.  Wilt  thou  not  then  be  afraid  of  the  power  ? 
Do  that  which  is  good,  and  thou  shalt  have  praise  of  the 
same.  For  he  is  the  minister  of  God  to  thee  for  good. 
But  if  thou  do  that  which  is  evil,  be  afraid ;  FOR  HE 

BEARETH  NOT  THE  SWORD  IN  VAIN  I  FOR  HE  IS  THE  MIN- 
ISTER OF  GOD,  A  REVENGER  TO  EXECUTE  WRATH  UPON 
HIM  THAT  DOETH  EVIL.'3* 

In  this  passage  several  things  are  brought  into  view. 
1.  The  divine  appointment  of  human  government.  2. 
A  distinct  and  explicit  recognition  of  the  penalty  of 
death  for  crime  as  then  in  existence,  and  of  the  righte- 
ousness of  this  custom.  3.  A  recognition  of  it  not  as 
the  result  of  any  compact  in  society,  by  which  individ- 
ual rights  are  committed  to  the  government,  but  as 
coming  directly  from  the  appointment  and  authority  of 
God.  4.  A  recognition  of  penal  inflictions  as  a  matter 

*  Romans  xiii.  1—4. 


TESTIMONY    OF   PAUL.  151 

of  pure  retributive  justice,  and  not  of  mere  expediency. 
These  are  most  important  deductions.  We  find  the 
apostle  clearly  sanctioning  capital  punishment  under  the 
Christian  dispensation,  and  referring  it  to  the  ordinance 
of  God ;  it  is  the  use  of  the  sword  in  the  punishment  of 
crime  by  magistrates  as  the  ministers  of  God.  There 
is  no  other  possible  view  that  can  be  taken  of  this  pas- 
sage. Calvin  calls  it  in  his  commentaries  "  an  illustri- 
ous place"  to  prove  the  divine  authority  of  capital  pun- 
ishment ;  and  he  adds  that  those  men  contend  against 
God,  who  deem  it  an  act  of  impiety  to  shed  the  blood  of 
the  guilty.* 

In  addition  to  all  this,  we  have  a  passage  in  Paul's 
own  life,  a  commentary  in  his  own  experience,  which 
sets  in  a  still  stronger  light  the  falseness  of  the  supposi- 
tion that  the  penalty  of  death  was  abrogated  under  a 
milder  genius  in  the  Christian  dispensation.  We  find 
Paul  himself  fully  recognizing  the  justice  and  the  sol- 
emn authority  of  that  penalty,  in  his  own  person  at  the 
judgment  bar.  When  he  stood  before  Festus,  who 
would  have  had  him  go  up  to  Jerusalem  to  be  judged  by 
the  malignant  Jews,  he  said,  "  I  stand  at  Caesar's  judg- 
ment seat,  where  I  ought  to  be  judged :  to  the  Jews 
have  I  done  no  wrong,  as  thou  very  well  knowest.  For 
if  I  be  an  offender,  or  have  committed  any  thing  worthy 
of  death,  I  refuse  not  to  die  :  but  if  there  be  none  of 

*  CALVINI  in  Pauli  Epistolas  Commentarii.  Vol.  I.  p.  174.  Con- 
tendant  igitur  curn  Deo,  qui  sanguinem  nocentium  hominum  effundi 
nefas  ease  putant. 


152  CAPITAL   PUNISHMENT. 

these  things  whereof  these  accuse  me,  no  man  may  de- 
liver me  unto  them.  I  appeal  unto  Caesar."*  Here,  as 
an  innocent  man,  Paul  does  not  appeal  to  any  law  of 
Christ,  or  provision  of  his  gospel,  abolishing  the  penalty 
of  death,  but,  in  the  full  acknowledgment  of  the  right- 
eousness of  that  penalty  for  the  guilty,  appeals  unto 
Ceesar,  with  whom  the  supreme  authority  of  the  Roman 
government,  as  superior  to  the  Jewish,  lay.  This  must 
be  regarded  as  a  decisive  issue  of  the  question.  Paul 
supposes  that  there  are  crimes  worthy  of  death,  and  that 
a  human  government  may  rightfully  inflict  the  penalty 
of  death  for  such  crimes ;  he  requires  a  legal  investiga- 
tion in  his  own  case,  and  if,  by  such  investigation,  he  be 
found  to  have  done  any  thing  which  deserves  that  pen- 
alty, he  does  not  refuse  to  suffer  it,  he  is  willing  to  die. 
The  argument  thus  tested  in  Paul's  own  experience,  we 
conceive  to  be  perfect.  It  is  incontrovertible,  that  so 
far  from  there  being  any  abrogation  of  the  Noachic  ordi- 
nance, either  in  the  letter  or  by  the  spirit  of  the  Chris- 
tian dispensation,  we  find,  in  the  opening  of  that  dispen- 
sation, a  new  and  distinct  promulgation  of  the  same. 

*  Acts  xxv.  10, 11. 


CHAPTER  VI. 

' 

PROOF  FROM  THE  CONSENTANEOUSNESS  OF  DIVINE  PROVIDENCE. 

ONE  more  point  of  importance  as  to  the  lasting  obliga- 
tion of  this  ordinance  remains  to  be  considered,  and  that 
is,  its  consentaneousness  with  the  voice  of  God's  provi- 
dence. In  order  to  evade  the  argument  drawn  from  it, 
some  men  have  asserted  that  it  is  only  a  prediction. 
Now  there  are  three  things  that  forbid  this  conclusion : 
first,  the  context ;  second,  the  absurdity,  to  which  it  re- 
duces the  climax  of  the  divine  covenant  with  Noah ;  and 
third,  the  after-legislation  of  God  upon  this  subject.* 
But  supposing  for  a  moment  that  it  might  be  considered 
as  a  prediction  simply  ;  it  has  either  been  fulfilled,  or  it 
has  not.  If  it  has  not,  this  reduces  it  to  a  falsehood  ; 
but  if  it  has,  it  is  principally  through  the  penalty  of 
death  enacted  in  all  human  governments  against  the 
crime  of  murder  ;  which  penalty  must  therefore  be  con- 
sidered as  one  of  God's  providential  arrangements  for  the 
fulfilment  of  his  own  prediction,  and  consequently  as 

*  Non  esse  autem  praedictionem  simplicem  sine  mandato,  hoc  loco, 
Deus  ipse  ostendit,  dum  in  lege  sua  postea  disertam  addit  sui  statuti 
explicationom,  Exod.  21 :  12,  ubi  hanc  legem  sancivit,  qui  percutit 
hominem  ita  est  morietur,  omnino  morte  plectitor. — RIVETUS  in  Gen. 
Exercitatio  59. 


154  CAPITAL    PUNISHMENT. 

possessing  his  own  sanction,  as  much  as  the  constitution 
of  government  itself.  Other  providential  arrangements 
combine  with  this,  to  secure  the  same  result. 

Now  it  is  worthy  of  consideration  whether  we  are 
not  bound  to  watch  the  course  of  the  Divine  Providence, 
and  where  it  is  clear,  to  imitate  it  ourselves,  to  support  its 
conclusions,  to  carry  into  effect  the  lessons  drawn  from 
it.  To  those  who  regard  the  light  of  nature  as  of  equal 
authority  with  the  word  of  God,  because  emanating  from 
the  same  divine  original,  the  providence  of  God  consti- 
tuting, in  fact,  a  great  part  of  the  light  of  jjature,  this 
appeal  is  very  powerful.  And  to  those  who  maintain 
the  decision  of  Revelation  on  this  subject  as  final  and 
supreme  in  its  application  to  all  mankind,  the  appeal  is 
not  less  consentaneous  with  their  views  and  feelings.  If 
God  has  made  his  will  on  any  point  perfectly  manifest  by 
the  course  of  events,  it  is  not  less  obligatory  on  his  crea- 
tures to  obey  it,  than  if  it  were  written  in  his  word.  In 
such  a  case  events  are  the  utterances  of  the  Deity,  the 
publication  of  his  will,  the  syllables  and  hieroglyphics 
in  which  men  read  it,  the  tables  of  stone  on  which  it  is 
recorded. 

Now  the  consentaneousness  of  the  course  of  events 
with  the  promise  to  Noah  of  what  the  Divine  Providence 
would  do,  the  perfect  adaptation  of  the  reality,  as  it  turns 
out  in  the  progress  of  human  society,  to  the  rule  by  God 
propounded  in  its  commencement,  is  wonderful.  It  is  so 
universal,  that  it  has  made  a  deep  impression  not  upon 
observant  and  religious  minds  merely .  but  upon  all  minds, 


PROOF    FROM   DIVINE    PROVIDENCE.  155 

upon  the  human  mind ;  an  impression  which  has  passed 
into  a  proverb ;  and  proverbs,  we  had  almost  said,  are 
the  inspired  records  of  God's  providence.  And  the  pro- 
verb  that  MURDER  WILL  OUT,  combines  in  itself  the  con-  I 
viction  not  merely  that  murder  will  be  discovered,  but 
will  be  avenged.  The  experience  of  all  mankind  con- 
firms its  truth.  Cases  might  be  cited  almost  by  hun- 
dreds, in  which  a  retributive  providence  has  tracked  the 
heels  of  the  murderer,  its  dark  form,  like  the  terrible 
shadow  of  the  crime  committed,  like  a  spirit  rising  from 
the  blood  that  hath  been  shed,  pressing  nearer  and 
nearer,  till  it  has  come  up  with  the  guilty  man,  con- 
fronted him,  and  laid  him  low.  Bloody  and  deceitful 
men  shall  not  live  out  half  their  days.*  Now  in  view  of 
this  expression  of  the  Divine  determination,  even  if  we 
had  nothing  but  the  voice  of  nature  to  speak  to  us,  it 
would  seem  presumptuous  to  strike  out  from  human 
legislation  its  corresponding  page ;  to  set  up  a  clause  of 
abrogation,  that  in  fact  would  contravene  this  course  and 
declaration  of  the  Divine  will ;  would  falsify  and  stultify 
the  Noachic  precept,  if  considered  as  a  prediction,  and 
would  openly  and  glaringly  insult  and  violate  it  if  con- 
sidered as  a  command.  But  when  we  regard  the  Divine 
Revelation  and  the  Divine  Providence  together,  the 
course  of  wisdom,  piety,  and  duty  does  not  admit  a 
doubt. 

God,  in  his  word,  by  direct  command,  by  second  and 
third  bills  of  legislation,  explanatory  and  confirmatory 
*  Psalm  Iv.  23 


156  CAPITAL    PUNISHMENT. 

of  the  first,  and  by  precepts  and  general  instructions, 
has  clearly  manifested  his  will  that  the  murderer  should 
be  put  to  death.  He  has  also  in  his  providence,  by  giv- 
ing effect  to  those  laws,  by  providing  institutions  for 
their  execution,  by  establishing  the  civil  magistracy 
with  the  power  and  right  of  death  as  a  penalty,  and 
by  so  securing  the  punishment  of  the  murderer,  from 
age  to  age,  that  it  has  become  an  instinctive  convic- 
tion of  the  human  mind  that  he  is  destined  to  death 
as  the  punishment,  a  conviction  almost  as  deep  as  the 
assurance  that  the  sun  will  continue  to  rise  and  set, 
manifested  the  same  determination,  so  that  his  word  and 
his  providence  correspond,  even  as  the  dial  plate  of  a 
watch,  with  the  internal  arrangement  of  the  machinery, 
or  the  waxing  and  waning  of  the  moon,  with  the  rising 
and  refluence  of  the  tides.  Now  the  attempt  to  disjoin 
these  manifestations  of  the  Divine  will,  and  to  render 
them  contradictory,  by  securing  the  murderer  against 
death,  through  the  instrumentality  of  human  statutes  for 
his  protection,  is  as  absurd  and  wrong,  as  if  men  should 
attempt  by  statute  to  alter  the  laws  of  nature. 

All  mankind  have  judged  the  punishment  by  death  to 
be  the  only  proper  penalty  against  the  crime  of  murder. 
All  mankind  have  thought  thus,  because  God  has  so 
clearly  made  known  his  thoughts  upon  the  subject. 
The  prejudice,  if  you  please  to  call  it  such,  is  as  old  as 
the  repeopling  of  the  world  after  the  deluge ;  it  was 
solemnly  sanctioned  by  the  ordinances  of  God ;  it  has 
obtained  in  all  nations  even  more  universally,  than  the 


PROOF   FROM   DIVINE   PROVIDENCE.  l5i 

custom  of  sacrifices ;  and  it  has  the  testimony  of  the 
human  conscience  universally  in  its  favour.  And  the 
thing  is  so  evident  in  the  Scriptures,  that  even  from  the 
endeavours  of  those  who  argue  against  them,  a  man 
who  had  never  seen  or  heard  them  anywhere  but  in  the 
pages  or  debates  of  their  opponents,  might  see  which 
way  the  truth  lies ;  as  an  old  writer  says,  it  were  end- 
less to  enumerate  the  echoes  of  the  Christian  Law, 
which  those  Rocks  that  oppose  it  do  themselves  reverbe- 
rate ;  so  that  a  man  intently  listening,  may  gain  the  be- 
ginning, middle,  and  end  of  some  of  those  very  precepts 
which  they  reject.  And  human  experience,  though  of- 
ten too  late,  inevitably  finds  out  the  same  lessons,  which 
have  been  taught  for  our  instruction  beforehand  by 
Divine  wisdom  ! 

The  business  of  a  wise  legislator  is,  in  Wordsworth's 
striking  language,  to  copy  with  awe  the  one  Paternal 
Mind,  and  not,  by  processes  humane  in  show  only,  but 
in  reality  subversive  of  the  good  of  society,  to  reject,  and 
as  far  as  possible  to  thwart,  the  lessons  of  that  mind. 
God,  in  this  ordinance  of  death  for  murder,  and  in  the 
consentaneousness  of  his  providence  therewith,  and  in 
the  universal  and  ineradicable  convictions  of  the  human 
mind  corresponding  thereto,  has  communicated  a  power 
and  majesty  to  the  whole  theory  and  practice  of  a  just 
human  law,  of  which  it  were  a  fearful  thing  if  the  state 
should  be  shorn ;  if  the  dignity  and  sanction  of  the 
state  fell  below  and  contradicted  the  example  of  the 
Scriptures  and  the  working  of  the  human  conscience. 
15 


158  CAPITAL   PUNISHMENT. 

This  truth  is  finely  set  forth  in  the  condensed  lines  of 
the  great  moral  poet. 

Not  to  the  object  specially  designed, 

Howe'er  momentous  in  itself  it  be, 

Good  to  prevent  or  curb  depravity, 

Is  the  wise  Legislator's  view  confined. 

His  spirit,  when  most  severe,  is  oft  most  kind. 

As  all  authority  on  earth  depends 

On  Love  and  Fear,  their  several  powers  he  blends, 

Copying  with  awe  the  one  Paternal  Mind. 

Uncaught  by  processes  in  show  humane, 

He  feels  how  far  the  act  would  derogate 

From  even  the  humblest  functions  of  the  state, 

If  she,  self-shorn  of  majesty,  ordain 

That  never  more  shall  hang  upon  her  breath 

The  last  alternative  of  Life  or  Death. 


CHAPTER  VII. 

VRGUMENT    FROM    SCRIPTURE    CONTINUED. PURPOSE     AND     DESIGN    OF 

THIS    ORDINANCE. ITS   SANCTION    OF    THE     CIVIL     MAGISTRACY. OF 

THE     ORIGIN     OF    GOVERNMENT. OF   ITS    POWER   TO     TAKE    LIFE. 

BENEVOLENT    DESIGN    OF   THIS   ORDINANCE. 

WE  are  to  consider  in  the  next  place  the  purpose  and 
design  of  this  ordinance.  It  must  be  considered  first,  as 
we  have  already  intimated,  as  containing  the  sanction 
and  divine  authority  of  a  civil  magistracy.  Doubtless, 
this  was  one  of  its  objects.  What  goes  before  asserts 
and  promises  the  providential  interposition  of  God  in 
making  inquisition  for  blood,  and  visiting  the  iniquity  of 
bloodshed  on  those  who  were  guilty  of  it.  But  this  or- 
dinance commits  into  the  hands  of  men  the  solemn  and 
awful  power,  authority,  and  duty  of  taking  vengeance. 
Whoso  sheddeth  man's  blood,  BY  MAN  shall  his  blood  be 
shed.  Now,  as  it  is  not  to  be  supposed  for  a  moment  that 
God  meant  that  any  and  every  individual  in  the  event 
of  a  murder  should  consider  himself  authorized  to  kill 
the  murderer  ;  since  this  would  be  to  produce  anarchy 
instead  of  order  and  security  in  society  ; — as  we  cannot 
suppose  that  God  intended  to  commit  this  power  at  ran- 
dom into  the  hands  of  individuals  ;  we  must  regard  it  as 
referring  to  the  formal  exercise  of  justice  in  the  civil 


160  CAPITAL   PUNISHMENT. 

government.     We  are,  in  fact,  compelled  to  this  conclu- 
sion, there  being  no  alternative.* 

*  The  learned  Huguenot,  Andreas  Rivetus,  among  other  com- 
mentators, has  presented  this  view  of  the  Noachic  ordinance  most 
clearly  and  satisfactorily,  at  the  same  time  adducing  and  refuting 
the  objections  of  the  Socinians,  Anabaptists,  and  others,  who,  he  says, 
endeavoured  to  corrupt  the  passage  and  elude  its  force.  "  Est  igitur 
hoc  loco  tucLTayna,  seu  constitutio  Dei  ipsius  ore  prolata,  qua  sanguis 
homicidae  voluntarii,  qui  humanum  sanguinem  ausu  nefario  effudit, 
per  hominem,  nempe  id  ad  legitime  constitutum,  id  est,  per  Magis- 
tratum,  vita  privati  debet."  "  The  passage  is  a  rule,  by  God  himself 
promulgated,  according  to  which  the  voluntary  wicked  homicide, 
the  man  who  maliciously  sheds  human  blood,  shall  himself  be  de- 
prived of  life  by  man,  that  is,  by  the  legitimately  constituted  ma- 
gistracy."— RIVETUS.  Exercitatio  59  in  Gen. 

The  expressions  of  this  opinion  by  other  learned  writers  are  equal- 
ly explicit.  "  Magistratus  hie  a  Deo  instituitur,  eique  gladius  datur 
in  manus.  Deus,  qui  prius  totum  judicium  sibi  sumpserat,  nee  vel 
Cain  ab  homine  occidi  voluit,  post  diluvium  communicat  potestatem 
cum  homine,  et  tribuit  ei  potestatem  vitae  et  necis."  "  The  magistracy 
is  here  constituted  by  God,  and  a  sword  put  into  its  hands.  God, 
who  had  hitherto  taken  the  judgment  into  his  own  hands  exclusive- 
ly, and  did  not  permit  even  Cain  to  be  slain  by  man,  after  the  deluge 
makes  man  a  partaker  of  this  authority,  and  gives  to  him  the  power 
of  life  and  death." — MUNSTERUS  in  Poli  Synops.  in  Gen.  IX.  Tom.  I. 
p.  110. 

In  like  manner  VATABLUS  :  "  Hoc  versu  homicidis  mortem  denun- 
ciat  quomodocunque  moriantur  sive  jussu  magistratus,  sive  a  quo- 
cunque  aliunde  a  Deo  misso  carnifice."  "  In  this  verse  death  is  de- 
nounced against  the  murderer,  whether  by  command  of  the  magis- 
trate, or  by  any  other  executioner  commissioned  from  God." — Critici 
Sacri,  Tom.  I.  p.  158. 


ESTABLISAMENT   OF   THE    MAGISTRACY.  161 

And  this  view  is  confirmed  by  the  history  of  the  di- 
vine legislation  afterwards  and  in  detail.  For  a  while, 
previous  to  the  more  regular  forms  of  human  govern- 
ment, an  institution  prevailed,  marking  the  transition 
state  of  society,  an  institution  in  part  voluntary,  in  part 
by  social  consent  and  sanction,  by  which  the  nearest  rel- 
ative of  a  party  murdered  was  bound  to  pursue  and  ex- 
ecute vengeance  on  the  murderer.  Even  this  may  be 
considered  as  a  fulfilment  of  God's  assurance  to  Noah, 
that  the  divine  providence  would  secure  the  punishment 
of  bloodshed  by  death.  But  when  afterwards  God  re- 
sumed his  legislation  on  this  subject  through  his  minister 
Moses,  he  took  this  imperfect,  and  in  many  respects 
dangerous  institution,  and  adopting  it  into  the  provisions 
of  the  magistracy,  hedged  it  around  with  such  other 
forms  as  were  necessary  at  once  to  preserve  its  power, 
prevent  its  abuse,  and  secure  to  the  criminal  the  priv- 
ilege of  a  trial  by  witnesses.  But  all  this  after-legisla- 
tion bears  reference  to  the  first  broad  statute  enacted 
\vith  Noah,  the  ordinance  designed  for  all  his  posterity. 

Also  CALVIN  :  "  Sic  autem  Deus  vindictam  minatur  ac  denunciat 
homicidis,  ut  arraet  etiam  gladio  magistrates  ad  coedes  ulsciscendas, 
ne  impune  fundatur  sanguis  hominum."  "  God  thus  threatens  and  de- 
nounces the  punishment  of  the  murderer,  in  order  that  the  magis- 
tracy may  be  armed  with  a  sword  for  the  avenging  of  murder,  lest 
the  blood  of  men  should  be  shed  with  impunity." — Opera,  Tom  I.  p.  53. 

Also  GROTIUS:  De  Jure  Belli  ac  Pacis.  Lib.  I.  Cap.  2.     The  com- 
mand, Thou  shalt  not  kill,  Grotius  observes,  does  not  disprove  the 
right  and  duty  of  capital  punishment  inflicted  on  criminals. 
15* 


162  CAPITAL   PUNISHMENT. 

That  ordinance  confers  directly  from  God  upon  the 
civil  magistracy  the  power  of  the  sword,  the  power  of 
life  and  death,  as  the  highest  and  most  awful  sanction  of 
the  human  government.  It  clothes  the  administration  of 
righteous  law  with  a  divine  authority.  It  settles  the 
question  as  to  what,  in  this  case,  is  righteous  law.  It 
confers  a  power,  which  God  alone  had  a  right  to  confer, 
and  which,  until  he  should  have  distinctly  conferred  it, 
perhaps  no  form  of  civil  society  would  have  had  a  right 
to  assume  ;  although,  if  considered  as  a  matter  of  self- 
defence,  it  belongs  as  naturally  and  unquestionably  to 
nations  as  to  individuals.  It  takes  the  highest  function 
of  government  as  a  personification,  exponent,  or  repre- 
sentative of  all  its  just  functions,  and  by  surrounding  it 
with  all  the  solemnity  and  unquestionable  authority  of  a 
commission  from  God,  establishes  forever  the  principle 
set  forth  in  such  explicit  language  by  the  apostle,  that 
"  the  powers  that  be  are  ordained  of  God  ;  and  whoso- 
ever resisteth  the  power,  resisteth  the  ordinance  of  God ; 
for  the  ruler  is  the  minister  of  God,  bearing  not  the 
sword  in  vain,  but  as  a  revenger  to  execute  wrath 
upon  him  that  doeth  evil."  Thus  God  is  seen  at  the 
commencement  of  a  new  peopling  of  the  world,  laying 
the  foundations  for  the  superstructure  of  the  civil  gov- 
ernment throughout  all  generations.  And  thus  bringing 
together  again  the  view  of  this  subject  in  the  Old  and 
the  New  Testament,  our  former  conclusion  is  strength- 
ened, that,  so  far  from  there  being  any  abrogation  of  this 
ordinance  either  in  the  letter  or  by  the  spirit  of  the 


ORIGIN    OF    THE   CIVIL   MAGISTRACY.  163 

Christian  dispensation,  we  find  in  the  opening  of  that 
dispensation  a  new  and  distinct  promulgation  of  the 
same. 

We  have  said  that  as  a  matter  of  self-defence  the 
right  to  take  life  belongs  as  naturally  and  unquestionably 
to  nations  as  to  individuals.  It  is  important  to  dwell  for 
a  moment  on  the  consentaneousness  of  the  divine  author, 
ity  in  human  governments,  in  this  matter,  with  that 
which  is  derived  from  the  pretended  elementary  and  vol- 
untary formation  of  human  society.  The  right  position 
in  regard  to  the  civil  government  we  take  to  be  this : 
that  man,  in  his  essential  nature,  as  he  comes  from  the 
hand  of  God,  is  a  social  and  political  being  :  that  law 
and  government  are  a  part  of  the  essential  development 
of  the  race,  as  much  as  living  in  houses :  that  man,  in 
respect  to  the  race,  is  as  essentially  an  animal  governing 
and  to  be  governed,  as  he  is,  in  respect  to  the  individual, 
a  walking,  marrying,  thinking,  reasoning  animal.*  The 
same  Being,  who  made  man  in  the  beginning  male  and 
female,  and  surrounded  him  with  all  the  rights  and  sa- 
credness  of  the  family  constitution,  made  him  in  the  be- 
ginning to  be  a  creature  of  society,  and  endowed  him 
with  all  the  rights  necessary  to  the  maintenance  of  soci- 
ety in  its  most  perfect  form.  We  cannot  but  regard  the 

*  CICERO  :  De  Finibus,  etc.  in  Grotius.  "  As  we  make  use  of  our 
limbs  hefore  we  have  learned  what  was  the  design  of  Nature  in  fur- 
nishing us  with  them,  so  we  are  naturally  formed  for  civil  society, 
without  which  there  would  be  no  room  for  the  exercise  of  Justice  or 
Goodness." 


164  CAPITAL   P'JNISHMENT. 

idea  that  society  comes  from  nothing  but  the  voluntary 
compact,  as  a  pure  figment  of  the  imagination.  The 
learned  Grotius  treats  it  as  such  in  the  preliminary  dis- 
course to  his  great  work  De  Jure  Belli  ac  Pacis  ;  and 
even  Hume  expresses  very  nearly  the  same  opinion.* 

Admitting,  however,  the  assumption  of  the  voluntary 
compact  for  the  sake  of  the  argument,  we  are  met  with 
the  assertion,  than  which  there  was  never  a  weaker 
piece  of  sophistry,  that  inasmuch  as  government  derives 
its  rights  from  the  delegated  rights  of  individuals,  and 
men  cannot  delegate  that  which  they  do  not  possess,  and 
no  man  has  a  right  to  take  away  his  own  life,  therefore, 
no  man  can  give  this  right  to  another,  and  consequently, 
no  government  can  have  the  right  to  take  away  life  in 
any  circumstances. 

The  falseness  of  this  reasoning  may  be  shown  in  two 
ways.  First;  every  man  has  by  nature  the  right  of 
self  defence.  If  a  man's  wife  and  children  be  set  upon 
by  a  murderer,  he  has  the  right  to  kill  the  murderer. 
Now  this  right  of  self  defence,  which  every  man  pos- 
sesses in  a  state  of  nature,  he  gives  up,  to  a  certain 
degree,  in  the  compact  of  society  ;  it  is  in  part  the  busi- 
ness of  the  government  to  protect  and  defend  individuals, 
and  the  privilege  so  delegated,  gives  to  the  government 
the  right  to  take  away  life.  But, 

Second ;  the  falseness  of  this  reasoning  may  be  shown 
by  the  reductio  ad  absurdum.  It  proves  too  much.  For, 
no  man  has  the  right  to  imprison  himself  for  life,  in  a 
*  GROTIUS:  De  Jure  Belli  ac  Pacis.  Prel.  Disc.  VI. 


ANTEDILUVIAN    PENALTIES.  165 

solitary  cell,  an  outcast  from  society,  a  contemner  of  its 
relative  duties.  But  if  lie  has  not  this  right  in  himself, 
he  cannot  give  it  to  others,  and  consequently  no  human 
government  can  have  the  right  to  imprison  a  man  for 
life.  Taking  this  course  of  reasoning,  we  are  brought 
inevitably  to  this  result.  Either  way  we  are  forced  to 
the  conclusion  that  a  government  must  have  the  power  of 
life  and  death  lodged  with  it  for  the  purposes  of  human 
society. 

We  believe  that  it  was  one  design  of  God  by  the  Noachic 
ordinance  solemnly  to  confer  this  authority,  and  place  it 
beyond  dispute.  Besides  this,  it  was  his  purpose  to  set 
up  a  barrier,  which  had  not  before  existed,  against  the 
cruelty  and  violence  of  men's  passions ;  to  hedge  in  and 
restrain  their  malice  and  hatred  by  penalties,  which  do 
not  seem  to  have  been  known  in  the  Antediluvian  world.* 
At  the  outset  he  comforted  Noah,  who  remembered  the 
violence  and  wickedness  of  the  Antediluvians  with  ter- 
ror, by  the  assurance  that  crime,  and  especially ,  the 
crime  of  murder,  should  no  more  go  unpunished,  or 
slightly  punished,  as  it  had  done  ;  there  should  be  a 
greater  carefulness  of  human  life,  a  greater  regard  to 
its  sacredness.  In  the  Antediluvian  world  the  milder 

*  GROTIUS  is  of  this  opinion.  De  Jure  Belli  ac  Pacis.  Lib.  I.  Cap. 
2.  sec.  5.  Grotius  quotes,  as  usual,  some  striking  passages  from  an- 
cient writers  ;  the  following  from  Thucydides  :  "  It  is  probable  that 
in  former  days  heinous  crimes  were  slightly  punished  ;  but  when  in 
time  these  punishments  came  to  be  despised,  they  were  changed  into 
death."  In  Lib.  III.  De  Bello  Pelopon.  §  45. 


160  CAPITAL   PUNISHMENT. 

course  had  been  chosen,  but  in  vain ;  the  mildness  of 
that  legislation  only  tended  to  fill  society  with  violence 
and  crime.  God  spared  Cain,  and  the  consequence  was, 
since  no  murder  could  ever  be  committed  under  more 
aggravating  circumstances  than  that  of  Abel,  that  every 
murderer  felt  secure.  This  was  the  very  reasoning  of 
Lamech.  Informing  his  wives  that  he  had  slain  a  young 
man,  having  been  himself  also  wounded,  he  comforts 
them  against  the  fear  that  vengeance  might  be  taken 
upon  him,  by  referring  them  to  God's  lenity  in  the  case 
of  Cain ;  and  if,  says  he,  a  sevenfold  vengeance  was 
threatened  against  any  man  who  should  kill  Cain,  be  as- 
sured that  the  life  of  Lamech  shall  be  protected  seventy 
times  seven.  Lamech  was  the  last  lineal  descendant  of 
Cain  mentioned  in  the  Scriptures ;  so  that  we  have  the 
remarkable  fact  that  the  very  first  thing  known  of  Cain 
is  the  murder  of  his  brother,  and  the  very  last  thing  re- 
lated of  his  posterity  is  the  slaying  of  a  young  man  per- 
haps quite  as  unnecessarily ;  for  we  have  no  testimony 
but  Lamech's  in  the  case.  The  act  of  manslaughter 
may  have  been  committed  in  self-defence  against  an  in- 
dividual or  a  marauding  party,  who  had  set  upon  him, 
or,  he  may  himself  have  provoked  or  begun  the  contest, 
in  such  a  manner,  as  to  make  it  actual  murder. 

Now  this  reasoning  of  Lamech  was  very  natural ; 
and  God,  we  may  suppose,  was  willing  to  permit  the  ex- 
periment of  such  mildness,  in  order  to  demonstrate  more 
fully  the  monstrous  wickedness  of  men.  The  demon- 
stration was  terrific  ;  the  earth  was  filled  with  violence ; 


POSTDILUVIAN    PENALTIES.  167 

the  deluge  followed,  sweeping  the  earth  of  its  corrupt  in- 
habitants ;  and  now,  with  Noah  as  the  world's  second 
progenitor,  God  was  determined  to  establish  a  code  of 
laws  of  more  efficient  and  salutary  severity.  It  was  as 
if  he  had  said  to  Noah  and  his  sons,  Fear  not,  although 
ye  know,  and  tremble  to  remember,  the  violence  that  has 
hitherto  filled  the  world  of  the  ungodly,  the  dreadful 
carelessness  of  life  that  has  prevailed,  and  the  dreadful 
scenes  of  destruction  that  were  enacted  habitually.  It 
shall  be  so  no  more.  If  there  be  a  Cain  in  your  poster- 
ity, he  shall  be  slain  for  the  life  of  his  brother.  Whoso 
sheddeth  man's  blood,  by  man  shall  his  blood  be  shed. 
Whoso  defaces  and  destroys  by  violence  in  the  person 
of  his  brother  the  image  of  his  Maker,  shall  himself  be 
put  to  death  without  mercy. 

Here  it  should  be  remarked  that  we  do  not  need  this 
antediluvian  argument  to  strengthen  our  conviction  of 
the  wisdom  of  this  statute,  or  to  protect  its  reason  from 
cavil.  Neither  is  it  necessary  that  we  should  know  the 
cause  of  its  not  having  been  promulgated  as  early  as 
the  first  murder.  Its  intrinsic  reasonableness  carries  ail 
appeal  to  the  human  mind ;  and  moreover,  Jehovah  has 
condescended  to  annex  to  it  the  highest  possible  reason 
that  could  be  supposed  or  given ;  neither  can  our  igno- 
rance of  the  reason  why  an  ordinance  based  on  such 
perpetual  grounds  was  not  promulgated  at  a  previous 
period  weaken  the  nature  of  such  grounds  in  our  esti- 
mation, our  diminish  our  sense  of  the  intrinsic  reason- 
ableness of  such  an  ordinance.  If  it  did,  we  might  also 


168  CAPITAL   PUNISHMENT. 

say  that  the  late  promulgation  of  the  Christian  Religion 
to  the  Gentile  world  was  a  proof  that  it  is  not  of  univer 
sal  necessity,  nor  of  scriptural  excellence,  for  that,  if  it 
had  been,  it  would  assuredly  have  been  promulgated  to 
all  the  world  much  earlier,  which  reasoning  would  be  a 
most  presumptuous  and  daring  arraignment  of  the  wis- 
dom and  goodness  of  God. 

The  ordinance  thus  established  at  the  commencement 
and  foundation  of  society,  was  evidently  and  pre-emi- 
nently an  institution  of  benevolence.  God's  design  in 
it  was  one  of  love  to  his  creatures.  Every  part  of  the 
divine  covenant  with  Noah  is  marked  with  mercy,  as  if 
the  divine  justice  had  been  fully  displayed  and  vindicated 
with  earth's  cleansing  by  the  deluge,  and  now  again  God 
had  nothing  to  do  but  to  bless  his  creatures,  as  at  the  be- 
ginning of  creation,  and  to  form  institutions,  and  reveal 
promises  for  their  good.  As  an  institution  of  benevo- 
lence this  ordinance  was  first  promulgated  •  as  an  institu- 
tion of  benevolence  it  has  been  continued  for  the,  welfare 
of  the  human  community ;  to  make  the  life  of  man  a 
sacred  charge  committed  for  safe-keeping  not  only  to 
every  individual,  but  to  organized  human  society.  The 
attempt  to  fix  upon  it  the  stigma  of  cruelty,  the  reproach 
of  being  the  offspring  of  a  hard-hearted  age  and  people, 
cannot  but  be  regarded  as  an  extremely  presumptuous  and 
insolent  judgment  of  the  divine  wisdom  ;  a  judgment 
founded  on  no  better  grounds  than  those  with  which  some 
men  would  arraign  the  Supreme  wisdom  and  benevolence 
at  the  bar  of  ignorance,  prejudice,  and  unbelief  in  this 


BENEVOLENCE    OF    THE    STATUTE.  169 


world,  because  the  punishment  of  eternal  death  is  affixed 
to  the  violation  of  the  Divine  Law  by  Jehovah. 

In  the  case  of  Noah,  it  was  not  a  race  of  savages  for 
whom  God  was  legislating  ;  it  was  the  germ  of  a  refined 
people,  a  cluster  of  families  with  all  the  refinement  and 
knowledge  of  the  Antediluvian  world.  If  some  two  or 
three  English  families  of  education  and  refinement,  the 
father  and  ruler  of  their  households  being  eminently  a 
man  of  God,  should  be  placed  upon  *t  desert  island  to 
colonize  it,  the  laws  which  should  be  framed  for  its  gov- 
ernment would  assuredly  not  be  promulgated  for  a  race 
of  barbarians ;  they  would  not  be  devised  on  the  suppo- 
sition that  the  posterity  of  these  families  would  be  sav- 
age, ignorant  and  ferocious.  They  would  be  framed  to 
prevent  the  possibility  of  such  a  race  existing.  They 
would  be  of  a  nature  suited  and  intended  to  secure 
the  happiness  of  a  society  of  intelligent  men  and 
women.  And  such  were  the  laws  which  God  framed 
for  the  world's  government  under  Noah :  laws  adapt- 
ed to  the  world  in  its  best  state,  and  which  will  re- 
main in  the  period  of  its  greatest  glory.  They  were, 
in  point  of  fact,  made  and  issued  when  there  was  a 
greater  proportion  of  religion  in  the  world,  than  there 
has  been  at  any  period  since.  Perhaps  three  fourths  of 
the  world's  inhabitants  were  sincere  Christians  ;  nor  is 
the  use  of  the  word  Christians  an  anachronism ;  for 
Noah,  like  Abraham,  saw  Christ's  day,  and  believed  in 
the  foreshadowed  atonement.  This  grand  Noachic  or- 
dinance, therefore,  far  from  being  the  product  or  the  ne- 
16 


170  CAPITAL  PUNISHMENT. 

cessity  of  an  uncultivated  and  irreligious  age,  was  rather 
the  offspring  and  the  excellence  of  cultivation  and  of 
piety  ;  it  was  the  gift  of  God  to  a  Christianized  Human- 
ity. It  was  God's  bow,  set  in  the  angry  clouds  of  hu- 
man passion,  binding  and  restraining  them  ;  revealing 
God  in  the  same  attit^3  of  mercy,  as  when,  to  calm  the 
fears  of  the  gratefuj^Rl  admiring  patriarch,  he  spanned 
the  threatening  naa^K  of  the  storm  with  the  lovely 
colours  of  the  rpjJKw  •  erecting,  in  this  ordinance, 
a  sign  of  peace  arid*  order  for  the  moral  world,  as  full 
of  beauty  and  security,  as  the  rainbow  for  the  natural 
world. 

There  is  a  deplorable  disregard  of  truth,  as  well  as  a 
surprising  degree  of  ignorance,  in  much  of  the  decla- 
mation against  this  statute.  What  se^^W*  references 
men  are  often  found  making  to  a  supposed  barbarous 
state  of  the  world,  which  may  have  made  this  statute 
necessary,  though  a  more  refined  state  of  existence 
would  render  it  unnecessary  !  It  can  only  be  inconse- 
quent, inaccurate,  and  forgetful  reasoners,  who  will  be 
deluded  by  such  declaimers.  Not  only  was  this  law 
first  given  forth  while  there  was  a  greater  proportion 
both  of  piety  and  wisdom  in  the  world  than  there  has 
ever  been  since,  but  it  was  re-enacted  many  centuries 
afterwards,  still  more  explicitly,  for  the  wisest,  most  re- 
fined and  religious  community  in  the  world's  history. 

We  have  said  that  the  design  of  the  Deity  in  this 
enactment  was  evidently  a  design  of  love ;  we  may  now 
add  that  the  attempt  to  take  away  the  sanction  of  the 


BENEVOLENCE    OF    THE    STATUTE.  171 

penalty  of  death,  whether  from  the  human  or  the  divine 
government,  is  not  an  attempt  of  mercy,  but  against 
mercy,  against  the  highest  purposes  and  views  of  the 
divine  goodness.  We  know  well  who  it  was  that  in  the 
beginning  attempted  to  persuade  the  parents  of  the  hu- 
man race  that  no  such  penalty  as  that  of  death  for  the 
violation  of  law  existed ;  it  was  no  benevolence  in  him 
that  led  to  the  denial  of  this  penalty,  neither  is  it  benev- 
olence that  in  our  time  would  lead  to  its  abrogation.  It 
was  good  and  benevolent  in  God  to  affix  to  human  law 
by  divine  authority,  the  highest  penalty,  of  which,  in 
the  nature  of  things,  human  law  is  susceptible.  That 
penalty  is  death.  Its  annexation  to  law  in  this  world 
was  an  act  of  wisdom  and  goodness.  It  foreshadows 
and  proves  by  analogy  the  principles  of  the  divine  gov- 
ernment in  eternity.  As  the  highest  penalty  possible  in 
the  nature  of  things  is  annexed  to  the  highest  violation 
of  law  in  this  world,  so,  and  with  equal  wisdom  and 
goodness,  the  highest  penalty  possible  in  the  nature  of 
things  is  annexed  to  the  violation  of  the  divine  law  in 
eternity.  Man  can  kill  the  body,  and  it  is  all  that  he 
can  do;  but  God  can  destroy  both  soul  and  body  in 
hell. 


CHAPTER  VIII. 

ARGUMENT  FROM  SCRIPTURE  CONNECTED  WITH  THE  ARGUMENT  FROM 
EXPEDIENCY. — WISDOM  AND  NECESSITY  OF  THIS  ORDINANCE. COM- 
MONNESS OF  THE  SPIRIT  OF  CAIN  IN  HUMAN  SOCIETY. 

WE  are  now  to  consider  the  wisdom  and  necessity  of 
this  ordinance.  So  far  as  facts  in  past  ages  can  teach 
us,  we  take  this  to  have  been  clearly  demonstrated  in 
the  experience  of  the  world  before  the  flood,  so  that  it 
was  not  consistent  with  the  wisdom  and«  goodness  of 
God  to  repeat  the  experiment  made  with  the  .progeny 
of  the  first  murderer.  The  lenity  that  ,charaeteri- 
zed  the  divine  dealings  with  Cain  in  the  Old  World 
would  have  been  misplaced  if  continued  in  the  New. 
In  order  to  prevent  society  from  running  the  same  race 
of  wickedness,  a  different  order  of  things  was  neces- 
sary ;  a  different  period  of  life,  a  different  code  of  lawTs, 
a  different  set  of  institutions..  We  cannot  indeed  tell 
with  absolute  certainty  what  might  have  been  the  result, 
if  God  had  not  set  up  the  barrier  of  this  enactment,  but 
it  is  probable  that  there  would  have  been  less  and  less 
regard  to  the  sacredness  of  human  life,  and  men's  pas- 
sions would  have  increased  with  indulgence,  till  it 
would  have  become  a  customary  thing,  for  the  gratifica- 
tion of  malice,  to  take  life  with  very  little  provocation* 


SECURITY    OF    SOCIETY.  173 

Men  would  have  stabbed  and  killed  one  another,  in  a 
sudden  fit  of  anger,  or  for  the  execution  of  some  cher- 
ished spite,  with  as  much  freedom  and  commonness  as 
they  would  kill  a  noxious  animal.  "  Am  I  my  brother's 
keeper  ?  Who  shall  call  me  to  account  ?"  It  is  to  be 
remembered  that  the  very  first  crime  on  record  after  the 
fall  is  that  of  murder,  and  not  only  so,  but  the  murder 
of  one's  own  brother ;  and  as  we  have  no  reason  to  be- 
lieve that  Cain,  as  a  specimen  of  humanity,  was  any 
worse  than  his  descendants,  and  on  the  contrary  are  as- 
sured by  divine  authority  that  the  spirit  of  murder 
dwells  in  the  heart  of  every  man  that  loveth  not  his 
brother  according  to  the  gospel,  it  is  probable  that  mur- 
der was  frightfully  common  in  the  antediluvian  world ; 
it  is  probable  that  it  would  have  been  quite  as  common 
in  the  world  after  the  deluge,  if  God  had  not  set  this 
barrier  against  it.  No  man  can  tell  how  much  of  its 
peace  and  security  society  owes  to  this  very  ordinance, 
how  much  of  the  fearfulness  that  now  invests  the  crime 
of  murder,  and  of  the  horror  with  which  all  men  regard 
it,  has  been  thrown  around  it  by  God's  annexing  to  it 
this  awful  penalty.  Those  who  desire  the  abrogation 
of  this  law,  and  reason  against  it  because  of  its  severity, 
can  have  little  conception  of  the  state  in  which  society 
would  now  have  been  existing,  if  from  the  beginning  of 
the  world  there  had  been  no  such  divine  enactment. 

Neither  can  it  be  told  how  greatly  the  absence  or  the 
abrogation  of  this  law  would  have  weakened  the  force 
of  all  other  penalties,  each  lower  penalty  suffering  in  its 
16* 


174  CAPITAL    PUNISHMENT. 

degree,  and  all  together  being  shorn  of  that  awful  pow- 
er, which  invests  the  functions  of  Law,  when  the  dread 
alternative  of  life,  or  death,  the  power  of  the  sword,  in 
the  language  of  the  apostle,  stands  ministering  to  its 
judgments. 

The  brief,  dark,  stern  account  of  the  first  murder  is 
terrible  in  its  warnings  and  its  lessons.  It  shows  four 
things ; — the  fatuity  and  sullen  insensibility  of  the  mur- 
derer ; — the  intolerable  deadliness  of  his  crime  ; — the 
certainty  of  its  discovery  and  punishment  ; — and  the 
nativeness  of  the  spirit  of  murder.  The  fatuity  of  this 
guilt  is  one  of  its  peculiar  characteristics ;  a  man  under 
the  influence  of  a  guilty  conscience  loses  his  common 
sense,  and  becomes  mad,  blind,  foolish.  Murder  be- 
trays itself  sometimes  by  its  insane  anxiety  for  conceal- 
ment. The  manner  of  Cain's  answer  might  have  made 
it  evident  to  any  person  that  he  was  the  murderer.  In 
all  probability  he  had  been  hiding  Abel's  body.  This 
would  naturally  be  his  first  step  after  killing  him.  He 
would  hastily  dig  a  pit  in  the  ground,  or  at  least  drag 
the  corpse  of  his  murdered  brother  into  the  woods,  and 
cover  it  with  leaves  and  branches ;  and  as  he  did  not 
think  of  the  interposition  of  God  in  the  discovery  and 
punishment  of  his  crime,  he  might  have  expected  to 
keep  it  concealed  from  every  creature.  He  had  a  ready 
falsehood  for  his  father  and  mother,  if  they  had  inquired 
after  their  murdered  son.  And  the  same  falsehood  was 
just  as  ready  for  God.  "  And  the  Lord  said  unto  Cain, 
Where  is  Abel  thy  brother  ?  And  he  said,  I  know  not : 


THE    FIRST    MURDERER.  175 

am  I  my  brother's  keeper?"  And  yet  the  murderer 
could  scarcely  have  had  time  to  wash  the  stains  of  his 
brother's  blood  from  his  own  hands,  and  to  cleanse  his 
raiment.  There  he  stood  before  God,  pale  and  trem- 
bling, with  hell  in  his  soul,  the  first  murderer  and  the 
first  liar  ! 

"  And  God  said,  What  hast  thou  done  ?  the  voice  of 
thy  brother's  blood  crieth  unto  me  from  the  ground. 
Thou  art  cursed  from  the  earth,  which  hath  opened  her 
mouth  to  receive  thy  brother's  blood  from  thy  hand." 
This  most  striking  declaration  finds  a  solemn  commen- 
tary in  that  passage  from  the  book  of  Numbers  already 
quoted.  It  shows  that  there  is  that  ingredient  in  the 
crime  of  murder,  which  will  not  suffer  God  to  rest  till  it 
be  expiated. — But  the  spirit  of  Cain,  and  the  common- 
ness of  Cain's  answer  in  this  selfish  world,  is  that  which 
touches  most  sharply  the  present  tenor  of  our  argument. 
Am  I  my  brother's  keeper  ?  There  was  as  much  mur- 
der in  Cain's  answer  as  there  had  been  in  Cain's  ac- 
tions. But  this  is  not  all.  It  embodies  the  spirit  of  the 
world  in  opposition  to  the  spirit  of  the  gospel,  the  spirit 
of  selfishness  in  opposition  to  the  spirit  of  benevolence, 
the  spirit  of  hatred  in  opposition  to  the  spirit  of  love. 
The  same  spirit  which  makes  Cain  the  questioner,  will, 
in  appropriate  circumstances,  constitute  Cain  the  mur- 
derer. A  man  who  will  ask,  Am  I  my  brother's  keep- 
er ?  will  rise  up  in  the  field  against  his  brother,  and 
slay  him.  Hence  the  necessity  of  the  terrible  severity 
>f  the  divine  ordinance  against  this  crime. 


176  CAPITAL    PUNISH 


Am  I  my  brother's  keeper  ?  Yes  !  thou  art  thy  broth 
er's  keeper.  On  the  gospel  scheme  thou  art  ;  by  the 
law  of  God  thou  art;  for  thou  shalt  love  thy  neighbour 
as  thyself.  If  thou  art  thine  own  keeper,  thou  art  also 
thy  brother's  keeper  :  and  in  the  highest  and  most 
sacred  point,  this  ordinance  is  designed  to  show  it  :  this 
ordinance  was  necessary  as  the  safeguard  of  this  truth, 
Thou  art  thy  brother's  keeper. 

We  therefore  take  the  necessity  of  Capital  Punish- 
ment to  have  been  very  clearly  .demonstrated  by  men's 
experience  before  the  deluge.  We  can  hardly  suppose 
that  unless  God  had  found  it  necessary  for  the  well-be- 
ing of  society,  he  would  have  increased  the  severity  of 
any  enactment  ;  and  his  placing  this  enactment  the 
very  first  thing  after  the  deluge  in  the  fore-front  of  all 
legislation,  does,  of  itself,  argue  a  necessity  growing  out 
of  the  very  elements  of  human  depravity.  If  neces- 
sary for  the  good  of  society,  then  was  it  also  benevolent 
and  wise  ;  and  its  terrible  severity,  which  by  some  is 
made  the  grand  argument  against  it,  is  the  very  proof 
of  its  wisdom.  All  those  arguments  which  go  to  show 
its  cruelty,  so  called,  go  to  show  its  wisdom,  for  they 
show  its  efficacy.  This  would  not  be  the  case,  if  the 
punishment  were  unjust,  were  contrary  to  men's  natural 
ideas  of  justice.  This  it  is  not  ;  the  experience  of  all 
murderers,  and  the  testimony  of  all  men's  consciences 
from  Cain  downwards  prove  that  it  is  not.  If  the  pun- 
ishment were  unjust,  then,  the  greater  its  severity;  the 


WISDOM    OF    THE    PENALTY.  177 

greater  its  injustice ;  but  admit  the ,  enormity  of  the 
crime  and  the  justice  of  the  punishment,  and  then  every 
powerful  colouring,  in  which  you  depict  its  severity, 
shows  more  clearly  its  wisdom,  for  it  shows  it  to  be  the 
more  perfectly  adapted  to  the  end  you  have  in  view. 


CHAPTER  IX. 

ARGUMENT     FROM     EXPEDIENCY     CONTINUED. CONSENTANEOUSNESS    OF 

THE  LAW  OF  NATURE  WITH  THIS   ENACTMENT. THE  POWER  OF  CON- 
SCIENCE, AND  THE  NECESSITY  OF  RIGHTEOUS  LAW  TO  SUSTAIN  IT. 

IT  is  important  to  dwell  for  a  moment  on  the  consen- 
taneousness  of  the  law  of  nature  with  this  enactment. 
We  speak  now  of  the  spontaneous  and  natural  opinion 
of  mankind  as  in  all  ages  developed.  The  universality 
of  the  sentiment  in  the  soul  of  man  respecting  the  jus- 
tice and  necessity  of  the  punishment  of  death  for  mur- 
der is  such,  that  we  might  well  regard  it  as  a  part  of 
the  Law  of  God  written  on  the  heart :  the  common 
thoughts  and  usages  of  nations,  even  in  the  light  of  na- 
ture merely,  would  go  far  to  corroborate  this  opinion. 
The  experience  of  Cain  himself,  in  the  commencement, 
sheds  a  singularly  powerful  light  on  this  part  of  the  sub- 
ject. His  conscience  told  him,  before  either  his  crime, 
or  any  law  against  it,  or  for  the  avenging  of  it,  had  been 
promulgated,  that  he  was  worthy  of  death ;  worthy  of 
the  same  last  evil,  which  he  himself,  in  his  enormous 
iniquity,  had  inflicted  on  his  own  brother :  the  very  fore- 
boding of  his  soul  within  him  declared  that  all  mankind 
would  seek  to  kill  him ;  and  it  would  seem  that  in  order 
to  avoid  this,  it  was  necessary  to  resort  to  some  particu- 
lar edict  in  defence  of  Cain,  This  deep  horror  of  the 


POWER    OF    CONSCIENCE.  179 

crime  of  murder,  and  this  inwrought  image  and  predic- 
tion of  avenging  justice,  supported  by  the  voice  of  God, 
has  been  developed  wherever  men  have  grown  into  com- 
munities.  We  have  an  instance  of  this,  of  very  peculiar 
interest  and  power  in  the  "  barbarous  people,"  who, 
though  the  majesty  and  dignity  of  Rome  called  them 
barbarous,  like  all  foreigners,  showed  so  much  courtesy 
and  kindness  to  Paul  after  his  shipwreck.  "  No  doubt," 
said  they  among  themselves,  when  they  saw  the  venom- 
ous viper,  from  the  fire  which  he  had  kindled,  hanging 
on  his  arm,  "  No  doubt  this  man  is  A  MURDERER,  whom 
though  he  hath  escaped  the  sea,  yet  vengeance  sufFereth 
not  to  live."*  This  is  indeed  very  striking.  This  venge- 
ance, h  3iKri,  this  divine  justice,  had  a  strong  place  in  the 
convictions  of  the  anoients,  and  the  sentiment  here  ex- 
pressed in  regard  to  the  guilt  and  just  desert  of  murder 
it  would  seem  is  the  natural  sentiment  of  the  heart ;  a 
sentiment  which,  stamped  by  the  divine  sanction,  is 
proved  to  be  as  just  as  it  is  natural ;  though,  if  not  sup- 
ported by  the  divine  authority,  it  is  evident  that  it  would 
soon  lose  its  power,  and  become  obliterated.  The  natu- 
ral conscience  of  mankind  gets  exceedingly  darkened 
and  corrupted  without  the  light  of  revelation  ;  and  our 
sense  of  the  enormity  of  any  crime  may  be  greatly 
moulded  by  the  nature  of  the  penalty  annexed  to  it ;  so 
that,  in  the  course  of  ages,  supposing  the  penalty  of 
death  had  never  been  connected  by  the  Almighty  with 
this  crime,  we  might  have  come  to  consider  its  iniquity 
as  very  slight. 


180  CAPITAL   PUNISHMENT. 

The  reason  for  this  mysterious  depth  and  intensity  of 
feeling  in  regard  to  the  nature  of  justice  in  the  case  of  a 
murderer  is  to  be  found  partly  in  the  fact  that  the  crime 
of  murder  is  itself  the  climax  and  concentration  of  all 
malice,  in  the  violation  of  the  great  law  of  love,  on 
which  hang  all  the  law  and  the  prophets. 

The  offence  is  rank  ;  it  smells  to  Heaven, 

It  hath  the  primal  eldest  curse  upon  it. 

Hence  the  universal  conviction  that  murder  cannot  be 
concealed ; 

Those  dread  Beliefs,  coiled  serpent-like  about 
The  adage  on  each  tongue,  MURDER  WILL  OUT. 

God  forbid  the  legislation,  that  should  weaken  the  pro- 
tecting power  of  these  inward  prophets  and  ministers  of 
justice  !  "  The  voice  of  thy  brother's  blood  crieth  unto 
me  from  the  ground !"  The  whole  creation  of  God 
seems  to  array  itself  against  the  offender ;  the  elements 
scowl  and  darken  upon  him ;  the  air  is  "  with  dreadful 
faces  thronged." 

The  fiends  in  his  own  bosom  people  air 
With  kindred  fiends,  that  hunt  him  to  despair. 

The  feeling  of  sure  discovery  and  retribution  follows  the 
murderer  himself  the  world  over ;  and  the  very  image 
of  his  iniquity, — the  "  damned  spot,"  which  he  cannot 
wash  out,  the  bloody  dagger  which  he  sees  before  him, 
— draws  him  to  the  sufferance  of  its  penalty. 


POWER    OF    CONSCIENCE.  181 

The  ERINNYS  of  the  ancients, — their  EUMENIDES  with 
serpent-wreathed  heads, — is  a  creation  of  the  mind  of 
man,  which  speaks  volumes  as  to  the  predictive  truth 
and  power  of  the  human  conscience.  The  etymology 
of  the  word  from  "Ept?  and  Nofc  the  strife  or  fury  of  the 
mind,  is  a  tremendous  revelation.*  It  opens  up  at  once, 
to  any  man  whose  thoughts  will  pursue  it,  the  whole  doc- 
trine of  an  internal  hell  in  the  unquenched  elements  of 
human  passion.  Some  of  the  most  remarkable  passages 
in  classical  literature,  in  which  the  ministry  of  the  Fu- 
ries is  introduced,  are  those  connected  with  this  very 
crime  of  murder  as  the  occasion  of  the  sentiment.  There 
is  a  striking  similarity  between  the  descriptions  in  heathen 
writers  and  those  in  the  Scriptures  themselves  in  regard 
to  the  just  providence  of  God  making  inquisition  and  ex- 
ecuting vengeance  for  blood.  "  For  this,"  says  the 
prophet  Tiresias  to  Creon,  in  the  Antigone  of  Sophocles, 
"  For  this  are  the  Furies  of  Hell  and  of  the  gods,  pursuers 
with  penal  vengeance,  lying  in  wait  for  thee,  that  thou 
mayest  be  insnared  in  the  very  same  misfortunes. "f 

*  These,  says  the  poet  Gray,  alluding  perhaps  to  this  very  deriva- 
tion of  the  word,  and  contemplating  a  group  of  youthful  beings  : 
These  shall  the  vulture  passions  tear, 
The  FURIES  of  the  mind  ! 

t  SFv^iJi'  r'  dri'^Wf  iv  rd<pM  KaTumaas' 

*  *  *  * 

Tolfrwi'  at  \o){3rjrripts  {xTrcpotydopot 
Xo^cDcrtj/  'At(Jov  Kal  deuv  'Egttvvve?, 
«/  Tolatv  avTois  rotate  \ij<pQfjvai. 

Antigone  of  Sophocles,  1064-1076. 

17 


182  CAPITAL    PUNISHMENT. 


To  this  purpose  may  be  noted  the  irpfyavTis  At*a  and  the 
xa\KOTrovS  'Epivvvs  of  the  Electra  ;  this  expression  of  pro- 
phetic justice  conveying,  to  any  mind  that  will  reflect 
upon  it,  a  great  and  high  idea  beyond  that  which  is  or- 
dinarily attached  to  the  signification  of  the  word  in  hu- 
man society.*  The  highest  idea  of  justice  is  a  prophetic 
idea,  pointing  to  a  future  retribution. 

That  is  a  powerful  passage  in  which  Webster  has  de- 
picted the  workings  of  the  murderer's  conscience,  the 
impossibility  of  hiding  his  crime.  "  The  whole  creation 
of  God  has  neither  nook  nor  corner  where  the  guilty 
can  bestow  such  a  secret,  and  say  it  is  safe.  The  guilty 
soul  cannot  keep  its  own  secret.  It  is  false  to  itself;  or 
rather,  it  feels  an  irresistible  impulse  of  conscience  to  be 
true  to  itself.  It  labours  under  its  guilty  possession,  and 
knows  not  what  to  do  with  it.  The  human  heart  was 

The  Hebrew  idea  of  the  pollution  of  the  land  by  Wood,  in  the  view 
of  the  Deity,  and  of  the  necessity  of  expiating  it  by  blood  again,  is 
exhibited  in  the  Oedipus  Tyrannus  of  Sophocles.  See  from  the  95th 
line  to  the  14!st. 

"  Homicidse  plerumque  poenas  luuiit  coedis,"  says  Le  Clerc,  "  seu 
in  judicum  maims  incidant,  seu  justa  Dei  providentia,  violenta  nece 
intereant."     He  quotes  JEschylus  in  the  Agamemnon  : 
Twi/  TToXwroVwj/  yap 

OVK  OLffKOKOt   Qtoi  * 


The  gods  have  their  eyes  upon  bloody  men  ;  they  are  not  wanting 
in  vigilance.     The  black  Furies  hurry  them  to  darkness,     Le  Cierc 
in  Gen.  IX.  Commentarius,  p.  79. 
*  The  Electra,  Chorus  473-515. 


TESTIMONY    OF   CONSCIENCE.  183 

not  made  for  the  residence  of  such  an  inhabitant.  It 
finds  itself  preyed  on  by  a  torment,  which  it  dares  not 
acknowledge  to  God  or  man.  A  vulture  is  devouring  it, 
and  it  can  ask  no  sympathy  or  assistance,  either  from 
Heaven  or  earth.  The  secret  which  the  murderer  pos- 
sesses soon  comes  to  possess  him,  and  like  the  -evil  spirits 
of  which  we  read,  it  overcomes  him,  and  leads  him 
whithersoever  it  will.  He  feels  it  beating  at  his  heart, 
rising  to  his  throat,  and  demanding  disclosure.  He 
thinks  the  whole  world  sees  it  in  his  face,  reads  it  in 
his  eyes,  and  almost  hears  its  workings  in  the  very  si- 
lence of  his  thoughts.  It  has  become  his  master.  It 
betrays  his  discretion,  it  breaks  down  his  courage,  it  con- 
quers his  prudence.  When  suspicions  from  without  be- 
gin to  embarrass  him,  and  the  net  of  circumstances  to 
entangle  him,  the  fatal  secret  struggles  with  still  greater 
violence  to  burst  forth.  It  must  be  confessed,  it  will  be 
confessed  ;  there  is  no  refuge  from  confession  but  suicide, 
and  suicide  is  confession."* 

Ye  brood  of  Conscience,  Spectres  !  that  frequent 

The  bad  man's  restless  walk,  and  haunt  his  bed, 

Fiends  in  your  aspect,  yet  beneficent 

In  act,  as  hovering  angels  when  they  spread 

Their  wings  to  guard  the  unconscious  innocent ! 

Slow  be  the  statutes  of  the  law  to  share 

A  laxity  that  could  not  but  impair 

Your  power  to  punish  crime,  and  so  prevent. 

*  WEBSTER  :    Argument  on  the  trial  of  Knapp.     Speeches,  Vol. 
I.,  p.  452. 


184  CAPITAL  PUNISHMENT. 

And  ye,  Beliefs !  coiled  serpent-like,  about 
The  adage  on  all  tongues,  Murder  will  out ! 
How  shall  your  ancient  warnings  work  for  good, 
In  the  full  might  they  hitherto  have  shown, 
If  for  deliberate  shedder  of  man's  blood 
Survive  not  judgment  that  requires  his  own? 

WORDSWORTH. 


CHAPTER  X. 

OBJECTS    OF   THE     PUNISHMENT     OF    CRIME. WHAT    CONSTITUTES   THE 

PERFECTION  OF  CRIMINAL  JURISPRUDENCE  ? THE  THEORIES  OF  GOD- 
WIN AND  HUME.— DIFFERENCE    BETWEEN    JUSTICE    AND    REVENGE. 

IT  is  necessary  for  a  moment  to  consider  what  is  the 
object  we  are  seeking  in  the  punishment  of  crime  in  this 
world,  and  what,  consequently,  would  be  the  perfection 
of  criminal  jurisprudence.  The  punishment  of  crime 
in  a  world  of  probation  we  believe  to  have  three  ends  ; 
justice,  the  good  of  society,  and  the  reformation  of  the 
offender.  That  there  is  such  a  thing  as  justice,  separate 
from  the  other  aims  of  penalty,  can  be  clearly  demon- 
strated. The  very  word  conveys  an  idea  which  is  not 
to  be  confounded,  or  lost  sight  of,  in  the  expediency  of 
Law ;  the  word  Justice  does  not  mean  the  same  as  the 
word  expediency ;  men  sometimes  forget  the  latter,  and 
have  their  minds  solely  fastened  on  the  righteousness  of 
the  former.  Some  crimes  are  so  enormous,  so  brutal,4 
so  shocking,  so  cruel,  that  the  whole  moral  sense  of  the 
community  rouses  up  against  them,  and  calls  for  penal 
infliction ;  it  is  not  the  spirit  of  retaliation,  it  is  no  per- 
sonal malice,  no  feeling  of  ill-will  that  gives  utterance 
to  this  call ;  it  is  justice  that  is  demanded,  the  intuitive, 
spontaneous  expression  of  the  moral  sense  of  what  is 
17* 


186  CAPITAL   PUNISHMENT. 

proper  and  right ;  and  the  good  of  society  and  the  ref- 
ormation of  the  offender  are  forgotten  in  the  urgency 
^of  this  demand. 

This  feeling  of  the  nature  and  necessity  of  justice  is 
developed  individually  still  more  clearly  than   in   the 
moral  sense  of  the  community.      No  man  with  right 
feelings  ever  sees  a  man  that  is  unjust  and  cruel  even 
to  his  beast,  without  wishing  to  punish  him ;  if  you  see 
a  waggoner  in  the  street  needlessly  beating  his  horse, 
you  will  wish  to  beat  the  waggoner ;  no  man  ever  sees 
a  brute  in  the  shape  of  a  man  wantonly  inflicting  vio- 
lence  upon   his   brother   man,  but  feels  that  he  ought 
to   be   punished ;  and   yet   there   is   no   vengeance    in 
this  sentiment,  nor  any  idea  of  restitution,  nor  any  par- 
ticular  thoughtfulness  for  the  good  of  society,  but   a 
deep,  spontaneous  feeling  that  the  man  deserves  punish- 
ment, that  it  is  an  outrage  on  the  moral  sense  to  let  him 
go"  without  it,  that  he  himself  ought  to  be  made  to  feel 
the  wickedness  of  his  conduct.     This  is  especially  the 
case,  if  the  man  be  hardened,  sullen,  and  obstinate  ;  if 
he  show  sorrow  and  contrition,  there  is  a  very  different 
feeling ;  contrition  itself,  as  showing  that  the  man  is 
pained  and  suffering  for  his  crime,  seems  to  meet,  in 
some  measure,  this  spontaneous  demand  for  justice. 

We  think  this  view  is  sustained  by  Grotius,  in  a  good 
degree,  though  he  does  not  pursue  it,  but  confines  him- 
self to  the  argument  from  expediency.  Nevertheless, 
he  defines  punishment  as  malum  passionis,  quod  infligilur 
ob  malum  actionis,  evil  inflicted,  on  account  of  evil  com 


GROUNDS    OF    PUNISHMENT.  187 

mitted ;  and  in  the  following  extract  there  is  a  higher 
ground  indicated  than  that  taken  by  many  writers  on 
this  subject. 

"  Among  those  things,  which  Nature  herself  tells  us 
to  be  lawful  and  just,  this  is  one,  That  he  that  doeth 
evil,  should  suffer  evil ;  which  the  philosophers  call  the 
most  ancient  and  Rhadamanthean  law.  To  the  same 
purpose  is  that  saying  of  Plutarch,  Tw  0ca>  Iverat  aw,  &c. 
Justice  is  the  attendant  of  God  to  take  vengeance 
of  those  who  transgress  the  divine  law,  which  all  men 
naturally  have  recourse  to  against  all  men  as  their  fel- 
low-citizens. And  Plato  declares  that,  Neither  God  nor 
man  ever  said  this,  that  he  who  hath  done  wrong  to  an- 
other, doth  not  deserve  to  suffer  for  it.  And  Hierax  de- 
scribes justice  by  this  as  the  noblest  part  of  it,  that  it  is 
the  execution  of  punishment  on  those  who  have  first  of- 
fended. And  Hierocles  calls  punishment  the  medicine 
of  wickedness.  And  Lactantius  says,  They  are  guilty 
of  no  small  error,  who  miscall  punishment,  either  hu- 
man or  divine,  by  the  name  of  bitterness  and  malice, 
imagining  that  he  ought  to  be  esteemed  guilty,  who  only 
punishes  the  guilty.*" 

The  reasoning  of  many  persons  on  this  subject  would 
conduct  us  to  the  conclusion  that  in  fact  there  is  no  such 
thing  as  desert  to  be  considered  in  human  society ;  that  a 
man  is  not  punished,  or  ought  not  to  be  punished,  because 
he  is  guilty,  but  SOLELY  because  the  punishment  is  use- 

*  GROTJUS  :  De  Jure  Belli  ac  Pacis.  Lib.  II.  Cap.  20.  §  1.— See 
also  what  Grotius  says  of  Justice,  Book  I.  Chap.  9. 


188  CAPITAL    PUNISHMENT. 

ful,  and  therefore  that  no  man  ought  to  be  punished  from 
respect  to  what  is  past,  but  solely  from  regard  to  the  fu- 
ture. This  is  the  argument  pursued  by  Hume  ;*  but 
Godwin  carries  it  out  more  fully.  It  is  the  result  to 
which  all  must  come,  who  deny  the  propriety  of  punish- 
ing  a  man  simply  because  he  deserves  to  be  punished. 
Godwin  argues  that,  strictly  speaking,  there  is  no  such 
thing  as.  desert ;  it  is  a  chimerical  idea ;  and  therefore 
the  common  idea  of  punishment  is  altogether  incon- 
sistent with  right  reasoning.  The  infliction  should  bear 
no  reference  to  a  man's  innocence  or  guilt.  An  inno- 
cent person  is  the  proper  subject  of  the  infliction  of  suf- 
fering if  it  tend  to  good.  A  guilty  person  is  the  proper 
subject  of  it  under  no  other  point  of  view.f 

Now  it  is  not  requisite  to  hold  to  this  writer's  system 
of  Necessity,  in  order  to  come  to  this  absurd  conclusion  ; 
for  if  the  utility  of  punishment  be  absolutely  the  SOLE 
ground  of  its  infliction,  the  only  reason  why  it  is  just 
and  proper  to  inflict  it,  then  this  conclusion  is  perfectly 
correct.  And  if  our  courts  of  justice  could  take  per- 
fect cognizance  of  future  results,  so  as  to  be  sure  that  in 
any  given  case  this  method  would  on  the  whole  be  pro- 
ductive of  the  greatest  good,  they  ought  to  punish  the 
innocent  just  as  much  as  the  guilty.  This  monstrous 
proposition  is  just  a  fair  result  of  shutting  out  the  idea 
of  simple  justice  in  view  of  desert,  as  one  of  the  ends 
of  penal  infliction.  This  end,  let  it  be  remembered,  is 

*  HUME  :  Philosophical  Essays.     Principles  of  Morals,  Sec.  3. 
t  GODWIN:  Political  Justice,  Book  VIL  Chap.  1. 


JUSTICE    IN    PUNISHMENT.  189 


not  revenge,  embraces  in  itself  nothing  of  the  idea  of 
revenge  or  of  a  revengeful  spirit ;  although  it  is  one  of 
the  most  common  pieces  of  sophistry  to  argue  against  the 
punishment  of  death  for  murder  as  if  it  were  revenge- 
ful and  on  that  account  barbarous,  when  it  has  no  more 
of  a  vengeance  in  it,  than  imprisonment  for  life,  or  any 
other  penal  infliction.  It  has  j  ustice,  and,  so  has  every 
appropriate  penal  infliction ;  and  the  moral  sense  of  the 
human  mind  intuitively  demands  and  regards  justice  as 
one  of  the  objects  of  such  infliction ;  a  truth  which  we 
think  every  reflecting  mind  must  acknowledge,  if  it  be 
not  blinded  by  a  system  of  philosophy  founded  solely  in 
expediency. 

This  requisition  of  justice  by  the  moral  sense  has  a 
development  in  reference  to  nations  as  well  as  individu- 
als :  and  in  this  direction  sometimes  it  may  be  seen  more 
clearly  how  distinct  is  this  sentiment  both  from  that  of 
retaliation  on  the  one  side  and  expediency  on  the  other. 
There  is  scarcely  an  individual,  for  example,  who  would 
not  be  glad  to  see  the  government  of  France  humbled 
and  severely  punished  for  the  atrocious  iniquity  of  her 
war  against  Tahiti.  We  should  rejoice  to  see  her  com- 
pelled to  restore  fourfold  for  the  injury  done  in  her  pride 
of  power,  to  an  entirely  unoffending  and  defenceless  na- 
tion. This  is  the  sentiment  of  justice  ;  it  is  the  sponta- 
neous demand  for  it  in  the  human  mind. 

Other  crimes  again  are  so  dangerous,  that  the  sense 
of  the  community  and  the  aim  of  the  law  fasten  mostly 
on  the  good  of  society ;  so  that  neither  justice,  as  we 


190  CAPITAL    PUNISHMENT. 

have  spoken  of  it,  nor  the  good  of  the  offender,  are  much 
thought  of.  The  good  of  society  indeed  will  be  ac- 
knowledged by  all  to  be  the  great  important  aim  of  Law 
and  its  penalties  in  a  human  government.  The  good  of 
society  comprehends  several  things  which  have  some- 
times been  enumerated  as  separate  ends  of  penalty  ;  res- 
titution to  men  defrauded  or  injured,  the  support  of  law 
in  its  dignity,  the  strength  of  the  government,  the  confir- 
mation and  support  of  virtue,  and  the  restraint  of  vice. 

Other  crimes,  again,  are  of  such  a  nature,  or  com- 
mitted under  such  circumstances,  that  the  reformation  of 
the  offender  may  be  the  principal  thing  for  which  pun- 
ishment is  regarded.  But  it  is  evident  that  there  are 
crimes  so  dreadful,  as  to  make  it  necessary  that  justice 
and  the  good  of  society  solely  shall  be  considered. 

If  now  all  these  three  ends  of  the  punishment  of  crime 
could  be  always  attained  together,  it  would  be  the  very 
perfection  of  criminal  jurisprudence ;  but  it  is  very  far 
from  being  the  perfection  of  criminal  jurisprudence  to 
have  it  as  mild  as  possible.  There  are  ends  to  be  attain* 
ed  much  higher  and  more  important  than  that  of  mild- 
ness and  benevolence  to  the  offender. 

Yet  even  in  the  punishment  of  a  murderer  by  death 
it  is  possible  to  unite  all  the  three  objects  of  the  law, 
justice,  the  good  of  society,  and  tho  reformation  of  the 
offender.  Not  indeed  his  reformation  in  point  of  moral 
ity  merely,  or  his  living  a  moral  life  as  a  correct  mem 
ber  of  society ;  for  this  the  alternative  of  perpetual  im- 
prisonment contemplates  as  an  impossibility,  even  if  th* 


ENDS   OF   PUNISHMENT.  191 

punishment  of  death  were  abolished ;  jiiitJ^s^spintuj 
and  eternal  reformation,  his  repentance  towards  God,  a 
deep  and  holy  change  in  his  character,  the  pardon  of  his 
sins  through  faith  in  the  blood  of  his  Saviour,  and  a  pre- 
paration to  meet  God  and  be  blessed  in  his  presence. 
This  the  sparing  of  his  life  in  imprisonment  might  utter- 
ly prevent,  when  the  sentence  of  death  might  have  been 
the  means  of  a  hardened  criminal's  conversion. 


CHAPTER  XL 

THE    ENDS    OF    PUNISHMENT     FURTHER     CONSIDERED. FALSE    VIEW    OP 

THE    MATTER. DIFFERENCE     BETWEEN     PUNISHMENT    IN    THIS     LIFE 

AND    IN   THE    LIFE    TO    COME. 

IT  is  one  of  the  greatest  mistakes,  both  for  this  world 
and  for  Eternity,  to  suppose,  as  some  of  the  oppugners 
of  the  penalty  of  death  for  murder  contend,  that  punish- 
ment is  always  or  exclusively  designed  for  reformation. 
That  it  is  not  so,  the  common  sense  of  all  mankind 
avows.  It  is  well  known  that  penal  laws,  with  their 
sanctions,  contemplate  not  reformation,  but  punishment. 
Punishment  is  the  end  ;  the  effort  at  reformation  is  sub- 
servient  and  secondary.  The  penalty  of  violated  law  is 
suffering,  not  reformation.  If  it  were  not  suffering,  if  it 
were  not  severity  to  the  offender,  if  it  were  mere  ref- 
ormation, it  could  not  be  called  penalty.  What  sort  of 
logic  would  it  be  to  say  to  the  thief,  You  shall  pay  the 
penalty  of  your  crime  by  being  reformed,  or  to  the 
murderer,  You  shall  atone  for  your  violation  of  the  high- 
est law,  human  and  divine,  by  being  made  good  and  hap- 
py ?  Penalty  is  suffering,  and  suffering  is  inflicted  as 
punishment,  for  the  benefit  of  society,  and  not  for  the 
benefit  of  the  criminal.  The  reformation  of  the  crim- 
inal is  an  effort  separate  and  distinct  from  the  satisfac- 


DESERT   AND   JUSTICE.  /      193 

» ............  — 

tion  of  justice,  and  the  security  of  the  community.  It 
is  an  effort  of  wisdom  and  mercy,  to  come  in  along  with, 
and  after,  and  also  by  means  of,  the  punishment,  but  it 
is  not  the  final  cause  of  the  punishment.  The  words 
desert,  justice,  punishment,  convey  ideas  over  and  above 
the  idea  of  utility.  We  do  not  punish  because  it  is  use- 
ful, but  because  it  is  deserved  and  just ;  and  being  de- 
served and  just,  it  cannot  but  be  useful.  There  can  be 
no  doubt  that  punishment,  even  in  this  world,  is  some- 
times called  for,  apart  from  the  question  whether  it  be 
useful  or  not.  Indeed,  there  is  sometimes  a  demand  in 
the  bosom  of  the  guilty  person  himself,  for  punishment, 
and  a  sort  of  satisfaction  beneath  the  punishment,  as  if 
a  necessary  law  of  the  human  mind,  apart  from  all  con- 
siderations of  utility,  were  complied  with.  No  doubt 
such  a  law  exists,  in  regard  to  retribution  for  sin  ;  and 
though  there  can  be  no  conceivable  case  in  which  such 
retribution  is  not  useful,  still  the  human  mind,  in  its 
judgment  of  the  matter,  does  not  base  the  necessity  of 
retribution  upon  its  usefulness,  but  upon  its  justice.  Its 
intrinsic  justice  is  the  ground  of  its  utility  ;  its  utility  is 
not  the  ground  of  its  justice. 

Every  possible  effort  ought  to  be  made  to  reform  the 
criminal,  but  he  is  not  to  be  taught  that  he  is  punished 
solely  for  his*  own  good,  this  being  a  perfect  lie  in  the 
face  of  all  legislation,  human  and  divine.  If  his  refor- 
mation were  the  end  of  his  punishment,  then  the  moment 
he  repents  he  should  be  restored.  The  murderer  should 
come  back  to  society  with  all  the  esteem  and  happiness, 

s 


194  CAPITAL   PUNISHMENT. 

which  an  innocent  man  could  enjoy.  But  God  teaches, 
and  human  legislation,  under  God,  teaches,  that  punish- 
ment is  the  just  and  necessary  vindication  for  the  viola- 
tion of  righteous  law.  It  is  such  in  this  world,  it  is 
such,  also,  in  the  Eternal  World..  Punishment  in  the 
Eternal  World  must  be,  with  respect  to  the  individ- 
ual, the  work  of  Justice  solely.  Punishment  in  this 
world  would  also  be  the  work  of  Justice  solely,  without 
possibility  of  any  effort  at  the  reformation  or  restoration 
of  the  offender,  if  it  were  not  for  the  intervention  of  the 
grand  and  infinitely  merciful  atonement  for  sin  by  the 
sufferings  and  death  of  Jesus  Christ.  This  holds  the 
violator  of  law  in  a  world  of  probation  in  such  a  position 
of  mercy,  that  while  punishment  is  inflicted  as  justice, 
it  may  also  be  turned  into  a  medicine  of  reclaiming 
love ;  it  may  be  attended  and  followed  by  all  possible 
efforts  to  soften  the  heart  and  bring  the  criminal  to  re- 
pentance. 

There  is,  then,  this  mighty  difference  between  punish- 
ment in  this  life,  and  punishment  in  the  life  to  come.  I 
have  mentioned  three  ends  to  be  attained  in  this  life,  but 
there  are  only  two,  which  are  possible  in  Eternity. 
Justice,  and  the  good  of  God's  universe,  are  all  that  can 
be  consulted  there.  The  reformation  of  the  offender  is 
tried  in  this  world,  has  in  every  case  been  tried,  and  if 
without  success  here,  then  there  remains  no  more  effort 
to  be  made  hereafter.  Even  if  such  effort  could  be 
made  in  Eternity,  it  would  be  useless.  But  it  cannot 
be  made.  This  is  our  world  of  probation,  and  there  is 


PUNISHMENT  HERE  AND  HEREAFTER.       195 

none  other.  In  the  future  life  there  remaineth  no  more 
sacrifice  for  sin,  and  the  efficacy  of  the  system  of  Re- 
demption, in  suspending  the  sword  of  Divine  Justice  from 
the  unrepentant  guilty,  lasts  no  longer  than  the  limits  of 
this  life  ;  it  extends  not  into  eternity.  It  was  not  made 
for  eternity,  but  to  prepare  men  for  eternity,  to  save  men 
from  eternal  perdition,  and  if  it  fails  in  that,  by  the 
offender  continuing  unreclaimed  through  all  the  period 
in  which  he  might  be  reclaimed,  it  has  no  more  that  it 
can  do,  and  punishment  for  the  ends  of  justice  and  the 
good  of  the  universe  is  the  only  thing  that  can  follow. 
These  are  truths  that  commend  themselves  as  perfectly 
to  the  human  reason,  as  they  show  themselves  clearly 
in  the  Divine  Revelation;  but  they  cut  men  off  com. 
pletely  from  the  theory  that  the  sole  end  of  punishmenl 
is  reformation. 


CHAPTER   XII. 

TEARFULNESS  AND  EFFICACY  OF  THE    PUNISHMENT    BY  DEATH. CAUSES 

OF   THE    DREAD    OF    DEATH. — PROSPECT  OF    THE    GUILTY  IN  ETERNI- 
TY.  OBJECTION    CONSIDERED,    OF    (?&KTING    OFF     THE     CRIMINAL   IN 

HIS    SINS. THE    ANSWER     OF     GROTIUSV— ANSWER    FROM    FACT    AND   . 

EXPERIENCE. — ALSO    FROM   THE    DIVINE    PROVIDENCE  AND  FROM  EX- 
PEDIENCY.  OBJECTION     CONSIDERED,     OF     THE     UNWILLINGNESS   OF 

JURIES   TO    CONVICT    IN    CASES    OF   MURDER. 

SOME  men  argue  that  punishment   by  death    is  not, 
after  all,  so  severe  and  terrible,  as  to  make  it   of  all 
modes  of  punishment  the  most  efficacious  to  deter  men 
from  crime.     It  is  asserted  that  hardened  villains,  for 
example,  fear  death  very  little,  and  that  to  some  the  idea 
i     X  of  imprisonment  for  life  is  far  more  terrific.     Now  we  do 
y^ld*       not  believe  there  is  an  individual  in  existence,  who,  if  the 
,  v"  Y0     (  alternative  were  presented  of  choice  between  anvignoi_ 
tStfi      \  minious   death   and    imprisonment   for   life,  would    not 
^  A  choose  the  latter.     There  are  degrees  in  the  fear  of 

&  death,  and  some  men  are  more  afraid  to  die  than  others, 

whose  preparation  for  death  is  no  better  than  their  own ; 
but  in  proportion  as  the  laws  are  well  administered,  the 
tone  of  moral  sentiment  healthful,  a  good  common  school 
education  prevalent,  and  the  Sabbath  well  observed  in 
any  community,  death  will  be  regarded  by  all  as  the 
last  and  most  terrible  of  punishments  to  a  criminal. 


THE    DREAD    OF    DEATH.  197 

Skin  for  skin,  all  that  a  man  hath,  will  he  give  for  his 
life ;  a  true  proverb,  and  not  the  less  correct,  because 
uttered  by  the  father  of  lies,  himself  a  murderer  from 
the  beginning.  There  is  no  passion  so  strong  as  the  love 
of  life.  The  aphorism  of  Lord  Bacon  is  not  true,  that 
"  there  is  no  passion  so  weak  but  mates  and  masters  it." 
There  is  no  grasp  so  tenacious  as  that  with  which  men 
hold  on  to  life ;  no  delusion  more  powerful,  than  that 
which  makes  them  count  upon  long  years  of  life  in  store, 
though  living  quite  unfurnished  for  the  world  to  come. 

All  men  think  all  men  mortal  but  themselves.  Hand 
in  hand  with  this  love  of  life  goes  the  delusion  that  life 
will  be  preserved,  even  when,  for  the  indulgence  of  pas- 
sion, it  is  hazarded.  When  a  man  is  under  the  influence 
of  any  passion  that  is  said  to  "  mate  and  master"  the 
love  of  life,  it  is  not  the  loss  of  life,  the  issue  of  death, 
that  the  passion  contemplates,  but  the  accomplishment  of 
some  scheme,  the  gratification  of  some  desire,  that  will 
render  life  itself  more  agreeable.  The  man  expects  to 
have  his  life  continued.  Because  a  passion  leads  a  man 
to  incur  danger,  to  put  himself  in  a  situation  where  life 
may  be  lost,  it  proves  by  no  means  that  the  love  of  life 
is  overcome  by  the  passion  ;  the  passion  itself  grows  out 
of  the  love  of  life,  life  in  a  particular  desired  way. 
The  possibility  of  dying  is  not  the  hazard  on  which  a 
man  stakes  the  indulgence  of  his  will  in  this  sort  of 
gambling,  but  the  probability  of  living  ;  life  itself,  in 
greater  enjoyment,  is  his  inducement  for  the  stake. 

We  remember  to  have  been  very  much  struck  with  the 
18* 


198  CAPITAL  PUNISHMENT. 

death-scene  of  a  celebrated  romance-writer  in  Germany, 
who,  up  to  the  very  last,  persuaded  himself  that  he 
should  get  well,  and  spent  some  of  his  very  last  moments 
in  dictating  the  pages  of  a  new  novel  he  was  composing. 
"  Only  life  !"  was  his  exclamation,  "  this  sweet  life  !  life 
at  any  price,  life  even  with  suffering,  only  life,  life, 
life !"  True,  it  is  not  every  one  to  whom  life  is  so 
sweet.  But  there  is  an  immeasurable  distance  between 
the  highest,  sternest,  severest  punishment  and  death. 
Hence,  you  will  rarely  find  cases  of  suicide  in  prison- 
ers for  life  ;  but  when  the  sentence  is  that  of  death, 
strange  as  it  may  seem,  sometimes  the  very  horror  of 
death  produces  self-destruction. 

We  have  not  far  to  look  for  the  reason  of  all  this.  In 
truth,  this  powerful  love  of  life,  and  this  extreme  terror 
of  death,  are  because  it  is  not  so  much  the  article  of 
death  that  men  fear,  as  what  comes  after  death  ;  nor  is 
there  any  other  passion  save  one,  that  can  subdue  the 
love  of  life  and  the  fear  of  death  together,  that  which 
was  the  master  passion  in  Paul's  bosom,  that,  from  the 
object  of  which  neither  life  nor  death,  things  present  nor 
things  to  come,  could  separate  him.  It  is  appointed  unto 
men  once  to  die,  and  after  that  the  judgment.  It  is  be- 
cause men  dread  the  judgment.  It  is  because  of  that 
unknown,  untried  future,  which  is  ETERNITY.  It  is  be- 
cause men  have  lived  unprepared  to  meet  God,  and 
when  death  stares  them  suddenly  and  unexpectedly  in 
the  face,  then  the  reality  of  an  endless  retribution  bursts 
upon  them.  It  is  because  the  soul  of  the  guilty  is  the 


19! 


THE    DREAD   OF    DEATH.  199 

prophet  of  its  own  misery.  It  is  because  its  keen  vision, 
outstripping  all  mortal  guesses,  darts  past  the  line  of  des- 
tiny, pierces  the  veil,  and  gazes  affrighted  on  the  fore- 
shadowed picture  of  the  life  to  come,  the  reality  of  death 
eternal.  It  is  because  there  is  a  sleeping  voice,  so  deep 
down  in  the  recesses  of  the  soul,  that  though  it  be  stifled 
almost  all  through  life,  yet,  when  it  begins  to  speak,  it 
upturns  and  troubles  the  whole  ocean  of  being  from  its 
foundations ;  there  is  no  more  possibility  of  hushing 
those  dread  accents,  of  stilling  that  deep  tumultuous 
roar,  of  quelling  or  quieting  the  clamour  of  a  roused  and 
angry  conscience,  than  of  stilling  the  resurrection  trum- 
pet. For  even  as  that  trumpet  echoes  through  the  vaults 
of  death,  Awake  ye  dead,  and  come  to  judgment,  so  does 
that  voice,  which  is  ready  for  utterance  in  every  man's 
soul,  reverberate  through  its  recesses,  startling  forgotten 
and  dead  sins  from  their  slumbers,  and  pealing  before- 
hand the  anticipated  sentence. 

Now  it  is  on  the  ground  of  this  dreadful  prospect  in 
Eternity  that  some  men  argue  that  the  punishment  of  '-> 
death  cannot  be  right,  because  it  sends  an  immortal  soul 
unprepared  into  eternity.  This  is  a  very  solemn  con- 
sideration. But  let  us  place  it  in  the  right  light,  and 
we  shall  find  that  it  bears  more  in  favour  of  punishment 
by  death  than  against  it.  We  shall  find  that  in  taking 
away  this  sanction  from  the  majesty  of  law,  we  have 
deprived  our  criminal  jurisprudence  of  its  highest  re- 
generating and  sanative  influence,  and  have  left  it 
more  likely  than  ever  to  be  the  mere  usher  of  impenU 


200  CAPITAL   PUNISHMENT. 


tent  and  unprepared  men  into  the  presence  of  their 
Judge.  It  may  be  very  powerfully  argued  that  the  sen- 
tence  of  death  is  an  event,  which  is  more  likely  than 
the  solitude  of  the  longest  life,  to  rouse  up  the  con- 
science of  a  hardened  sinner,  and  set  him  to  crying  ear- 
nestly for  mercy  from  his  God ;  and  if  that  does  not 
do  it,  it  is  almost  certain  that  nothing  else  will.  A  man 
is  not  sentenced  and  hurried  instantly  to  the  gallows, 
but  space  is  given  for  repentance,  and  if,  under  such 
circumstances,  the  criminal  is  not  awakened,  it  is  little 
likely  that  he  ever  would  be.  The  sentence  of  death 
tends  powerfully  to  impress  the  criminal  with  a  sense 
of  the  exceeding  enormity  of  his  guilt ;  but  in  the  case 
of  the  sentence  of  imprisonment  for  life,  the  pressure 
which  the  hand  of  death  had  laid  upon  the  man's  con- 
science is  lightened  ;  the  power  that  brought  him  so 
near  to  the  face  of  God  is  broken,  and  he  shrinks  back ; 
the  grasp  of  conviction  is  relaxed,  the  soul  is  again 
thrown  upon  its  own  resources,  and  its  ingenuity  is  ex- 
ercised in  revolving  the  possibilities  of  escape.  The 
time  is  long  ;  there  are  many  things  that  may  happen  ; 
a  pardon  is  possible ;  there  are  precedents  that  greatly 
favour  the  idea ;  a  studied  good  behaviour  may  procure 
a  mitigation  of  the  sentence ;  at  all  events,  the  long  in- 
dulged and  powerful  habit  of  religious  procrastination 
need  not  be  so  hastily  and  violently  broken  up ;  there 
will  be  time  enough  for  repentance. 

Now  it  is  precisely  this  grant  of  time  enough  for 
repentance,  that  is  likely  to  keep  the  individual  from 


REPENTANCE   OF   THE   CRIMINAL.  201 

repenting  at  all ;  it  is  likely  to  fix  in  solitude  that  habit 
of  procrastination,  which  has  become  so  strong  in  active 
life,  and  so  incorporated  with  the  soul's  nature  by  crime. 
The  sacred  declaration  applies  with  great  power,  Be- 
cause sentence  against  an  evil  work  is  not^e&eculert  speed- 
ily, therefore  the  heart  of  the  sons  of  r/teu  lisljhuty  set 
in  them  to  do  evil.*  In  view  of  these  truths  Wiv  turn"  * 
this  argument  back  upon  its  propounded,  beHtfvirlg  that 
the  practice  of  imprisonment  for  life,  should  it  prevail  to 
the  exclusion  of  the  punishment  of  death,  would  some- 
times seal  men  for  perdition  in  eternity,  when  the  sen- 
tence of  death  might  have  proved  the  salvation  of  their 
souls. 

The  learned  Grotius  has  noted  and  refuted  this  objec- 
tion in  a  passage  which,  taken  with  the  commentary 
that  we  shall  append  to  it  from  actual  experience  in 
Newgate,  merits  consideration.  "  Some  men  are  at 
fault  with  capital  punishment,  because  with  life  all  op- 
portunity of  repentance  is  cut  off.  But  they  well  know 
that  good  magistrates  have  the  greatest,  vigilance  in  this 
matter,  that  no  criminal  may  be  hurried  to  execution 
without  ample  time  to  acknowledge  and  heartily  detest 
his  sins  ;  which  late  repentance,  although  by  reason  of 
death  works  do  not  follow  it,  may  be  accepted  of  God, 
as  proves  the  example  of  the  penitent  and  pardoned 
thief  upon  tha  cross.  But  if  men  say  that  a  still  longer 
period  of  life  might  produce  a  still  deeper  repentance,  it 
may  be  answered  that  the  experiment  has  often,  proved 
*  Eccles.  8:11. 


202  CAPITAL   PUNISHMENT. 

otherwise:  there  have  been  those  to  whom  that  pithy 
and  solemn  sarcasm  of  Seneca  might  have  been  address- 
ed, We  have  one  good  thing  more  to  offer  you,  and  that  is 
death :  and  of  whom  those  other  words  of  the  same  au- 
thor may  b3  'applied,  that  in  that  way  only  can  they  cease 
to  be  wicrced.1  AYhich  is  what  Eusebius  had  said  before ; 
sih'oe  they  'cannot  be  reformed  by  any  other  means,  let 
"  them,  tfeing'  thus  freed  from  their  chains,  bid  adieu  to 
their  villanies."* 

We  believe  that  Seneca's  thought  is  a  true  one,  and 
that  there  are  cases  in  which  death  had  been  better  than 
life  for  the  spiritual  interests  of  the  prisoner.  A  stri- 
king confirmation  of  this  is  presented  in  Mr.  Edward 
Gibbon  Wakefield's  experience  in  Newgate,  detailed  in 
his  "  Facts  relating  to  the  punishment  of  Death."  He 
says  that  "  the  Reverend  Mr.  Cotton,  the  ordinary  of 
^Jgjjigatgj^jvho  has  been  chaplain  of  the  jail  for  more 
tharf  a  dozen  years,  has  often  acknowledged  to  him,  that 
he  does  not  remember  an  instance  of  what  he  considered 
sincere  conversion  to  religious  sentiments,  except  in  pris- 
oners who  were  executed.  A  very  great  show  of  relig- 
ipus  fervour  is  often  made  by  prisoners,  even  from  the 
moment  of  their  entrance  into  Newgate,  still  more  after 
they  enter  the  cells.  But  in  such  cases,  when  the  pun- 
ishment is  finally  settled  at  something  less  than  death, 
the  prisoner  invariably  behaves  as  if  all  his  religion  had 
been  hypocrisy.79 

The  objection  we  are  here  speaking  of  is  urged 
*  GROTITTS:  De  Jure.  Lib.  II,  cap.  20,  $  12. 


S?ACE   FOR    REPENTANCE.  203 

against  capital  punishment  in  this  world  on  the  ground 
of  the  truth  of  eternal  punishment  in  the  world  to  come. 
It  is,  indeed,  no  objection  at  all,  except  upon  the  undeni- 
able reality  of  a  future  endless  retribution.  If  there 
were  no  such  retribution,  and  the  unscriptural  scheme 
of  some  religious  speculators  were  true,  then  the  pun- 
ishment of  crime  in  this  world  by  death,  far  from  being 
dreadful  or  severe,  would  be  the  highest  favour  the  law 
could  possibly  confer,  since  it  would  transfer  the  crim- 
inal to  a  blissful  existence  from  a  life  of  shame  and  suf- 
fering. It  should  be  added  that  the  objection,  if  it  pos- 
sessed any  weight  at  all,  would  lie  as  strong  against  the 
very  first  Divine  ordination  of  capital  punishment,  as 
against  the  penal  statutes  of  any  modern  government. 
Nay,  it  would  be  stronger,  because  the  execution  of  the 
penalty  of  the  law  doubtless  followed  more  rapidly 
upon  the  commission  of  the  crime  then,  than  it  does 
now.  But  the  objection  can  have  no  weight  against  the 
justice  or  propriety  of  a  law  established  by  Jehovah, 
however  much  force  it  may  have  as  to  the  expediency 
of  lengthening  the  time  between  the  sentence  and  its 
execution.  When  space  is  given  for  repentance,  and 
the  guilty  individual  refuses  to  avail  himself  of  it,  then 
it  is  not  so  much  the  punishment,  that  hurries  him  un- 
prepared into  Eternity,  as  it  is  his  own  dreadful  choice, 
the  hardness  and  obstinacy  of  his  own  heart,  which  in- 
deed, if  under  such  circumstances  it  cannot  be  broken 
up,  probably  would  remain  for  ever. 

A  very  admirable  notice  of  this  objection  appears  in 


204  CAPITAL   PUNISHMENT. 

the  pages  of  a  British  periodical,*  in  which  the  great 
and  venerable  poet  Wordsworth  has  brought  the  wisdom 
of  seventy  years,  the  power  of  an  illustrious  name,  and 
the  undiminished  fire  of  his  imagination  to  the  illustra- 
tion of  this  subject.  The  writer  argues  that  "  it  is 
manifest  that  the  sudden  death  of  sinners  enters  into  the 
dispensations  of  Providence ;  and  whenever  it  appears 
to  be  good  for  mankind,  according  to  the  arrangements 
of  Providence,  that  such  death  should  be  inflicted  by 
human  ministration,  it  is  as  false  a  humility,  as  it  is  a 
false  humanity,  and  a  false  piety,  for  man  to  refuse  to  be 
the  instrument.  The  unwillingness  and  the  objection 
turns  upon  the  alleged  impiety  of  a  sinner  being  cut  off 
in  his  sins.  Now  assuming  that  we  are  all  sinners,  and 
assuming  also  the  efficiency  of  the  punishment  for  pre- 
vention,— say  to  the  extent  of  preventing  one  half  of  the 
murders,  which  would  be  committed  without  it, — it  fol- 
lows that  the  state,  by  sparing  to  cut  off  A,  who  has 
murdered  B,  would  be  the  occasion  of  C  murdering  D, 
and  E  murdering  F  ;  that  is,  of  two  persons  being  cut 
off  in  their  sins  by  the  hand  of  the  murderer,  instead  of 
one  by  the  hand  of  the  executioner.  This  is  an  issue, 
which  human  judgment  can  distinctly  reach  and  take 
account  of,  and  in  respect  of  which,  therefore,  God  has 
devolved  upon  man  a  responsible  agency. " 

This  is  true ;  it  is  excellent  reasoning ;  and  it  not 
only  meets  the  particular  objection  we  have  considered^ 

*  London  Quarterly  Keview,  No.  CXXXVII. 


THE   TRUE   PRUDENCE.  205 

but  it  is  a  sufficient  answer  to  those,  who  argue  the  ex- 
pediency  of  abolishing  capital  punishment,  from  the  un- 
willingness of  juries  to  convict  of  a  capital  crime.  In 
the  case  of  the  crime  of  murder,  where  the  Divine  Law 
is  so  clear,  with  both  Providence  and  Conscience  to  sup- 
port it,  the  true  expediency  would  be,  by  a  well-ordered  * 
sternness  and  immutability  in  the  execution  of  the  Law, 
to  train  the  minds  of  all  men  to  the  perception  and  ac- 
knowledgment of  the  justice  and  necessity  of  its  ulti- 
mate sanctions.  This  giving  way  to  the  disease  of 
wrong  feeling  or  mistaken  opinion  in  the  multitude,  in 
cases  of  clear  moral  right  and  duty,  because  it  is  feared 
that  otherwise  the  purposes  of  Law  cannot  be  answered, 
is  a  proceeding  of  melancholy  omen  in  any  government. 
It  is  the  wisdom  of  digging  down  the  charcoal  founda- 
tions of  the  Temple  of  Ephesus,  in  order  to  keep  up  the 
fires  upon  its  altars.*  It  is  "  purchasing  the  sword 
with  the  loss  of  the  arm  that  is  to  wield  it."  This  is 
not  the  virtue  of  Prudence ;  nor  can  there  be  any  gen- 
uine expediency,  without  lasting  principles  as  its  living 
root.  Assuredly,  if  these  be  despised,  "  instead  of  state- 
wisdom  we  shall  have  state-craft,  and  for  the  talent  of 
the  governor  the  cleverness  of  an  embarrassed  spend- 
thrift ;  which  consists  in  tricks  to  shift  off  difficulties  and 
dangers  when  they  are  close  upon  us,  and  to  keep  them 
at  arm's  length,  but  not  in  solid  and  grounded  courses  to 
preclude  or  subdue  them.  We  must  content  ourselves 

*  COLERIDGE  :  The  Friend.     Essay  V. 
19 


206  CAPITAL   PUNISHMENT. 

with  expedient-makers ;  with  fire  engines  against  fires, 
life-boats   against   inundations  :    but  NO   HOUSES   BUILT 

FIRE     PROOF,    NO     DAMS     THAT     RISE     ABOVE     THE   WATER 
MARK."* 

*  COLERIDGE  :  Essay  IV,  of  the  Landing  Place. 


m* 

mi 


CHAPTER  XIII. 

OCCASION   OP   THE   PREJUDICE   AGAINST    CAPITAL    PUNISHMEN^ — INJU- 
RIOUS  CONSEQUENCES    OP   THE   SEVERITY    OF   SANGUINARY    CODES. 

DIFFERENCE  BETWEEN  THE  REFORMATION  OF  PENAL  CODES,  AND 
THE  ANNIHILATION  OF  PENALTY. THE  ABROGATION  OF  THE  PUN- 
ISHMENT OF  DEATH  A  PREMIUM  ON  THE  CRIME  OF  MURDER. 

RECKLESSNESS    OF   THE    DESIRE    OF    CONCEALMENT. 

IT  is  a  question  that  very  naturally  forces  itself  upon 
the  mind,  assuming  the  fact  of  the  divine  original  of 
capital  punishment.  Whence  should  have  arisen  so 
violent  a  prejudice  in  some  quarters  against  it  1  In  this 
chapter  we  shall  state  only  the  reason  connected  with 
this  part  of  our  argument,  which  we  take  to  be  the 
,vish  use  and  consequently  the  great  abuse,  under 
many  governments,  of  the  highest,  most  awful,  and 
most  solemn  sanction  of  the  law.  Having  a  sword  put 
into  their  hands,  men  in  power,  like  little  children,  have 
loved  to  flourish  it  on  every  occasion.  If  legislators 
had  restricted  themselves  to  the  application  of  the  orig- 
inal ordinance  of  Jehovah,  we  believe  there  would  have 
arisen  no  more  question  in  regard  to  the  justice  and  ex- 
pediency of  that  law,  than  in  regard  to  the  authority  of 
the  very  first  commandment  in  the  decalogue.  Modern 
codes  have  been  tyrannous  and  sanguinary ;  and  the  an- 
nexation of  the  punishment  by  death  to  minor  offences, 


208  CAPITAL   PUNISHMENT. 

in  codes  of  law  notoriously  severe,  has  begotten  a  deep 
sentiment  of  injustice,  which  the  mind  has  afterwards 
connected  with  the  punishment  by  death  in  any  case. 
This  has  led  criminals  to  such  disregard  and  contempt 
of  it,  and  juries  to  such  frequent  sympathy  with  offend- 
ers, and  such  connivance  at  their  escape,  acquitting 
them  sometimes  both  against  law  and  evidence ;  and  it 
has  trained  the  public  feeling  to  such  compassion  for 
criminals  arraigned  and  condemned  under  such  laws,  as 
if  they  were  persecuted  wretches ;  that  some  writers 
have  seemed  to  possess  strong  ground  in  their  plea  for 
the  abrogation  of  the  penalty.  A  law  which,  by  ex- 
tending the  punishment  of  death  to  many  offences,  oc- 
casions murders  to  avoid  death,  must  either  become  a 
dead  letter  where  it  ought  to  be  applied,  or,  by  such  a 
spectacle,  must  weaken  the  power  of  the  penalty  of 
death,  even  in  countries  where  these  injurious  and  noto- 
rious abuses  of  it  have  not  been  prevalent. 

Now  it  is  one  of  the  most  difficult  things  in  the  world 
for  men  to  divest  themselves  of  a  prejudice  so  engen- 
dered, and  to  look  dispassionately  and  without  blindness 
at  the  authority,  justice,  and  expediency  of  punishment 
by  death  for  murder.  It  is  undeniable  that  modern 
penal  codes  in  their  lavish  application  of  the  last  penally 
of  law  have  well  merited  the  accusation  of  savageness 
and  barbarity ;  while  the  Jewish  code,  against  which  so 
many  ignorant  and  ill-timed  censures  have  been  direct- 
ed, is  incomparably  superior  in  the  equity  and  gentle- 
ness of  its  provisions.  In  that  code,  the  penalty  of 


REFORMATION  OF  PENAL  CODES.         209 

death  was  never  permitted  for  any  mere  invasion  of 
property.* 

During  the   reign   of  Henry  VIII.   72,000    persons 

' 
were  punished  by  death  in  England,  or  about  2,000 

every  year ;  and  in  the  time  of  Judge  Blackstone  one 
hundred  and  sixty  different  species  of  crime  were  pun- 
ishable with  death  in  that  country  !  Such  legislation  as 
this  does  but  increase  the  number  of  offenders ;  for  in 
the  words  of  the  Judge  himself,  "  The  injured  party, 
through  compassion,  will  often  forbear  prosecution ; 
juries,  through  compassion,  will  forget  their  oaths,  and 
either  acquit  the  guilty,  or  mitigate  the  nature  of  the 
offence  ;  and  judges,  through  compassion,  will  respite 
one  half  the  convicts,  and  recommend  them  to  the  royal 
mercy.  Among  so  many  chances  of  escape,  the  needy 
and  hardened  offender,  overlooking  the  multitude  who 
suffer,  boldly  engages  in  some  desperate  attempt  to  re- 
lieve his  wants  or  supply  his  vices ;  and  if,  unexpected- 
ly, the  hand  of  justice  overtakes  him,  he  deems  himself 
peculiarly  unfortunate  in  falling  at  last  a  sacrifice  to 
laws,  which  long  impunity  had  taught  him  to  con- 
temn."! 

Now  we  are  so  far  from  advocating  an  unreasonable 
severity  of  legislation,  that  we  hail  with  delight  the 

*  Save  one ;  the  iniquitous  invasion  and  assumption  of  property 
in  man.  "  He  that  stealeth  a  man  and  selleth  him,  or  if  he  be 
found  in  his  hands,  he  shall  surely  be  put  to  death."  Ex.  21 : 16 . 

t  BLACKSTONE  :  Commentaries  on  the  Laws  of  England.  Book 
IV.  ch.  1. 

19* 


210  CAPITAL   PUNISHMENT. 

progress  of  Christian  Philanthropy  in  rendering  it  both 
odious  and  unavailing ;  we  honour  and  admire  as  of  the 
highest  character  the  benevolence  of  those,  who  have 
laboured  for  the  reformation  of  such  codes.  This  is 
very  different  from  that  crude  and  wholesale  spirit  of 
revolution  and  experiment  which  would  abolish  utterly 
from  human  legislation  a  solemn  and  divinely  author- 
ized statute,  denying  its  application,  even  to  that  one 
crime,  for  the  punishment  and  prevention  of  which  it 
was  promulgated  directly  by  Jehovah.  Let  us  try  the 
experiment,  say  some  men,  and  see  how  it  will  work. 
Experimentum  de  corpore  vili,  says  Mr.  Burke,  is  a  good 
rule  ;  but  experiments  upon  so  sacred  an  interest  as  the 
constitution  of  the  country  and  the  religious  foundations 
of  Law,  are  of  another  character.  A  spirit  of  refor- 
mation is  never  more  consistent  with  itself,  than  when  it 
refuses  to  be  rendered  the  means  of  destruction.* 

The  Prison  Discipline  Society  of  our  own  country 
have  perhaps  gone  more  thoroughly  and  extensively  into 
the  investigation  of  this  subject  than  has  been  done 
anywhere  else  in  the  world.  The  conclusion  to  which 
they  are  brought  will  be  sustained,  we  believe,  by  the 
whole  world's  experience,  "  that  the  punishment  of 
death  for  murder  could  not  be  abolished  with  safety ; 
and  that  the  Law  of  God  seems  holy,  just,  and  good, 
Whoso  sheddeth  man's  blood,  by  man  shall  his  blood  be 
shed."  Experience  in  both  ways,  in  the  abrogation  as 

*  BURKE  :  Appeal  from  the  new  to  the  old  Whigs.  Works,  Vol 
III.  358. 


EXPERIMENTS   IN   EUROPE.  211 

well  as  existence  of  this  statute,  has  sustained  its  wisdom 
and  proved  its  necessity.  The  experiments  made  under 
the  reign  of  the  Empress  Catherine  of  Russia  in  the 
North,  and  through  the  influence  of  the  Marquis  Becca- 
ria,  under  Leopold  of  Tuscany  in  the  South  of  Europe 
have  been  quoted  with  confidence  in  favour  of  its  abro- 
gation. Their  continuance  was  too  short  for  any  un-  s 
questioned  conclusions  to  be  drawn  from  them ;  and  inas-  F 
much  as  they  were  made  in  states  where  the  penal  code 
had  been  dreadfully  and  unrighteously  severe,  no  con- 
clusion against  the  penalty  of  death  for  murder  could 
be  legitimate ;  and  the  whole  happy  result  (which  no 
just  mind  can  doubt)  of  the  abrogation  of  the  penalty 
of  death  for  minor  offences,  to  which  it  ought  never  to 
have  been  annexed,  has  been  appealed  to  as  an  argu- 
ment for  annihilating  that  penalty  utterly  and  entirely 
from  all  possible  offences,  not  even  excepting  the  crime 
for  which  it  has  been  solemnly  enacted  by  Jehovah  ! 
No  experiment  of  this  kind  could  be  a  fair  one,  unless  it  i/ 
were  tried  in  a  country  where  the  criminal  code  has  not 
been  severe,  and  where  the  punishment  by  death  has 
been  restricted  to  the  crime  for  which  the  Divine  Legis- 
lation has  made  it  obligatory ;  neither  in  such  a  case 
could  it  be  conclusive,  unless  tried  in  the  long  run,  and 
through  all  the  currents  and  circumstances  of  society. 
Accordingly  the  indisputable  authority  of  the  Conversa- 
tions-Lexicon in  Germany  is  adduced  on  the  other  side 
to  prove  that  the  results  of  the  European  experiments 
were  unsatisfactory  ;  for  it  is  declared  in  that  work  that 


V 


212  CAPITAL    PUNISHMENT. 

"  even  in  those  states  where,  from  a  one-sided  benevo- 
lence, the  governments  wished  to  abolish  capital  pun- 
ishment, they  were  compelled  again  to  avail  themselves 
of  it,  and  that  on  the  ground  that  in  the  opinion  of  men 
death  is  the  greatest  of  evils,  in  preference  to  which 
they  would  willingly  undergo  the  most  laborious  life 
with  some  hope  of  escape  from  it,  because  the  death- 
punishment  is  the  most  terrible  of  penalties."* 

There  can  be  no  doubt  that  the  undue  frequency  of 
the  punishment  by  death,  through  its  abuse  in  applica- 
tion to  minor  offences,  especially  if  executions  come 
thus  to  be  familiar  to  the  public  mind,  does  inevitably 
tend  to  lower  the  estimate  of  human  life  both  in  the 
view  of  the  criminal  and  of  the  community.  On  the 
other  hand,  the  penalty  of  death  for  murder,  inflicted  by 
a  government  that  reserves  it  for  this  awful  crime, — the 
penalty  of  death  by  the  government  for  the  taking  away 
of  life  by  the  individual, — is  admirably  adapted  at  once 
to  increase  men's  sense  of  the  value  of  human  life,  and 
to  deepen  their  conviction  that  the  penalty  of  death  is 
incalculably  more  dreadful  than  any  other  punishment. 
For  the  restraint  of  crime,  it  adds  both  to  the  power  of 
the  government,  and  to  the  more  invisible  and  awful 
efficacy  of  the  common  conscience  of  mankind. 

To  punish  by  death  for  the  stealing  of  a  horse  or  a 
sheep,  as  in  England,  or  for  other  minor  offences  there 
or  elsewhere,  is  in  effect  to  throw  in  the  way  of  the 

*  Biblical  Repository :  Vol.  X.  An  admirable  article  by  Professor 
S.  S.  Schmucker,  D.  D. 


PENALTIES   IN  FRANCE    AND   CHINA.  213 

criminal  a  temptation  to  murder  for  the  concealment  of 
crime.  It  has  been  said  with  truth  that  we  had  better 
have  ten  robberies  without  murder,  than  one  robbery 
with  murder  ;  so  that  it  would  be  better,  even  if  minor 
offences  should  increase,  that  this  last  and  most  dreadful 
offence  should  be  made  to  decrease,  by  taking  the  pun- 
ishment of  death  from  the  former,  and  reserving  it  only 
for  the  latter.  Blackstone  remarks  that  "  in  France  the 
punishment  of  robbery,  either  with  or  without  murder, 
is  the  same :  hence  it  is  that  though  perhaps  they  are 
therefore  subject  to  fewer  robberies,  yet  they  never  rob, 
but  they  also  murder.  In  China,  murderers  are  cut  to 
pieces,  but  robbers  not;  hence,  in  that  country  they 
never  murder  on  the  highway,  though  they  often  rob."* 
On  the  same  principle  it  has  been  found  in  the  State  of 
•  Pennsylvania  that  the  substitution  of  imprisonment  in- 
stead of  death  for  the  punishment  of  highway  robbery 
was  followed  by  a  sensible  diminution  of  the  murders. 
When  highway  robbery  and  murder  were  alike  punish- 
able by  death  then  the  crime  of  murder  was  mare  fre- 
quent ;  obviously  because,  if  a  man  must  be  hung  for 
robbery,  his  punishment  would  be  no  worse  for  the  mur- 
der, while  by  committing  this  crime,  he  might  entirely 
escape. 

On  the  other  hand,  this  same  argument  is  still  more 
powerful  against  taking  away  the  penalty  of  death  for  ! 
murder.     By  putting  this  crime  on  a  level  with  others, 
we  tempt  man  to  commit  it  for  the  ^same  inducements  f 


«. 


CAPITAL    PUNISHMENT. 


; 

obviously  for  the  same  reason ;  if  a  man  must  be  im- 
prisoned for  robbery,  his  punishment  will  be  no  worse 
for  murder,  and  by  committing  this  crime  he  may  en- 
tirely escape.  In  abrogating  the  penalty  of  death,  we 
secure  the  murderer's  life,  and  do  in  effect  set  a  premi- 
um upon  the  crime  of  murder.  No  worse  consequences 
will  follow,  the  midnight  robber  may  argue,  for  even  if 
the  murder  should  be  discovered,  I  am  safe  against  being 
killed,  and  by  the  removal  of  all  witnesses  I  may  suc- 
ceed in  burying  up  all  traces  of  my  crime  forever.  In 
effect  the  abrogation  of  this  statute  would  tend  to  arm 
every  lower  passion,  under  the  influence  of  which  a  man 
commits  the  lower  degrees  of  crime,  with  the  power  and 
sharpness,  the  dreadful  ferocity  and  decision  of  the 
stronger  impulses,  that  ever  lead  him  to  the  commission 
of  murder.  The  desire  of  concealment  would  be  per- 
fectly reckless  in  its  measures. 

One  of  the  main  pillars  of  our  security  against  the 
outbreakings  of  human  depravity  would  therefore  be 
taken  away,  if  this  statute  were  abolished.  Assuredly, 
men  would  not  feel  more  secure,  if  compelled  to  travel 
in  lonely  places  with  money,  if  alone  in  the  streets  at 
midnight,  to  remember  that  while  they  themselves  are  ex- 
posed defenceless  to  the  steel  of  the  assassin,  the  fear  of 
death  is  entirely  removed  from  the  murderer.  A  statute 
is  framed  to  protect  the  murderer's  life,  but  the  life  of 
his  victim  is  left  unprotected !  And  if,  by  the  abrogation 
of  the  penalty  of  death,  the  horror  with  which  the  crime 


EFFECT   ON   PRISON   DISCIPLINE.  215 

of  murder  is  regarded  should  be  so  gradually  diminished, 

that  the  keenness  of  pursuit  and  the  requisite  plainness 

of  evidence  should    fail,    then   would  private   revenge 

/"  spring  up  in    all  its  terrors,  and  the  angry  justice  of 

)  friends,  or  the  passions  of  the  mob,  as  in  some  parts  of 

/     our  own  country,  would  take  by  force  that  satisfaction, 

—"which  the  majesty  of  law  fails  or  refuses  to  secure. 

This  is  the  forcible  reasoning  in  that  sonnet  of  Mr. 
Wordsworth  on  the  scale  of  retribution  for  crime,  and 
the  danger  of  striking  out  its  highest  sanction. 

Fit  retribution,  by  the  moral  code 

Determined,  lies  beyond  the  state's  embrace, 

Yet,  as  she  may,  for  each  peculiar  case, 

She  plants  well  measured  terrors  in  the  road 

Of  wrongful  acts.     Downward  it  is,  and  broad  ; 

And  the  main  fear  once  doomed  to  banishment, 

Far  oftener  then,  bad  ushering  worse  event, 

Blood  would  be  spilt,  that  in  his  dark  abode 

Crime  might  lie  better  hid.     And  should  the  change 

Take  from  the  horror  due  to  a  foul  deed, 

Pursuit  and  evidence  so  far  must  fail, 

And,  guilt  escaping,  Passion  then  might  plead 

In  angry  spirits  for  her  old  free  range, 

And  the  wild  justice  of  Revenge  prevail. 

One  consideration  remains  to  be  added  in  the  matter 
of  expediency,  an  important  one,  which  indeed  might  be 
regarded  in  itself  alone  as  settling  the  question  ;  namely, 
the  effect  which  the  abolition  of  capital  punishment 
Would  have  upon  Prison  Discipline.  There  are  many 


J 


CAPITAL    PUNISHMENT. 


desperate  villains  now  in  prison  for  the  crime  of  murder. 
What  additional  punishment  have  they  to  dread,  were 
they  to  rise  and  kill  their  keepers  ?  How  readily  would 
they  do  this,  if  a  fair  hope  were  thus  presented  of  es- 
caping !  And  who  could  be  found  willing  to  act  as  keep- 
er of  a  prison,  if  his  life  were  not  protected  from  the  as- 
saults of  men,  whose  hands  are  already  imbued  in  hu- 
man blood,  by  something  which  they  dread  more,  than 
the  punishment  they  are  already  enduring  ? 


CHAPTER  XIV. 

PROPOSED    PLAN    OF    IMPRISONMENT    FOR    LIFE,    INSTEAD    OF    THE    PEN- 
ALTY   OF   DEATH,  CONSIDERED. 

IT  may  be  said  with  truth  that  we  do  not  look  at  this 
subject  fairly  and  fully,  unless  we  give  an  impartial  con- 
sideration to  the  alternative  proposed,  in  the  place  of  cap- 
ital punishment  abolished.  We  are  willing  to  take  it  in 
its  best  aspect.  Every  philanthropist  will  rejoice,  if  the 
attempted  abrogation  of  the  punishment  of  death  shall 
have  occasioned  a  plan  of  imprisonment  for  life,  by 
which  our  legislators,  without  destroying  the  last  sanc- 
tion of  the  law  in  the  penalty  of  death  for  murder,  shall 
have  for  the  next  grade  of  offences  a  punishment  as  ef- 
ficacious in  restraining  men  from  crime,  and  as  salutary 
in  reforming  them  for  Eternity,  as  the  punishment  of 
death  has  proved  to  be  in  reference  to  the  crime  of  mur- 
der. The  punishment  of  imprisonment  for  life,  as  most 
generally  executed,  is  little  better  than  a  name.  In  the 
State  of  New  York,  the  average  length  of  time  spent  in 
prison  by  those  criminals,  who  have  been  sentenced  to 
imprisonment  for  life,  has  been  six  years ! 

On  the  other  hand,  the  effect  of  solitary  confinement, 
as  that  too  has  been  ordinarily  managed,  has  proved  so 
20 


218  CAPITAL    PUNISHMENT. 

terrible  to  the  mind,  so  disastrous  to  the  individual's  na- 
ture, that  it  would  be  a  strange  philanthropy,  which 
should  prefer  the  slow  execution  of  the  wretched  crim- 
inal in  that  way,  to  his  execution  by  the  gallows  or  the 
scaffold.  There  are  some  fearful  proofs  on  record,  and 
that  even  up  to  the  present  year,  of  the  consequences  of 
such  treatment,  in  the  number  of  persons  in  France, 
who,  so  imprisoned,  have  become  insane.  This  mode  of 
reforming  criminals,  and  preparing  them  for  heaven  by 
insanity,  no  man  will  contend  for. 

But  let  the  plan  proposed  be  open  to  none  of  these  ob- 
jections ;  let  the  power,  and  so  the  possibility  of  pardon 
be  removed,  that  the  criminal  may  feel  assured  his  sen- 
tence is  for  life ;  and  let  all  the  appliances  of  religion 
and  of  education  be  interwoven  with  the  scheme,  and 
brought  to  bear  upon  the  offender  ;  still,  for  that  purpose 
which  is  the  great  object  of  penalty  in  this  world,  the  pre- 
vention of  crime  in  others,  and  the  welfare  of  society,  it 
cannot  possibly  supply  the  place  of  death.  It  may  be  a 
good  punishment,  admirably  constituted  and  applied,  and 
,  especially  good  for  the  offender,  but  yet  altogether  insuf- 
ficient in  its  energy  of  terror  and  power  of  restraint.  In 
.  fact,  the  more  humane  you  make  it,  the  more  you  relieve 
it  of  its  terrors ;  and  although  the  purpose  of  terror  is 
not  to  be  gained  at  the  expense  of  humanity,  and  a  spirit 
of  revenge  is  never  to  be  indulged  in  the  punishment  of 
the  criminal,  yet  it  would  be  an  ill-judged  benevolence 
indeed,  which,  forgetting  the  design  of  penalty,  should 
both  take  from  it  all  immediate  fearfulness  by  the  secu- 


REFORMING   EFFICACY.  '219 

rity  of  life,  and  make,  at  the  same  time,  a  comfortable 
restingj)lacje  for  life's  continuance. 
"The  most  important  argument  urged  in  favour  of  im- 
prisonment instead  of  death,  is  the  superior  opportunity  it 
is  alleged  to  give  for  the  reformation  of  the  offender. 
To  prevent  this  good  result  in  such  a  case,  there  comes 
in,  first,  the  hope  of  escape,  which  the  fact  of  life  in 
prospect  always  nourishes  ;  second,  the  habit  of  procras- 
tination, which  the  continuance  of  life  always  confirms ; 
and  third,  the  absence  of  any  consideration  of  immediate 
danger,  so  requisite  to  rouse  a  mind  hai'dened  by  crime 
out  of  its  slumbers.  Putting  these  things  in  contrast 
with  the  power  of  conviction,  and  the  power  of  awaken- 
ing, assumed  over  the  conscience  by  the  near  approach 
of  death,  we  think  few  minds  would  hesitate  as  to  the 
superior  efficacy  of  this  last  mode  of  punishment  for 
final  reformation  and  well-being  of  the  criminal.  But 
if  such  superior  efficacy  be  probable,  then  the  argu- 
ment of  benevolence  to  the  offender,  as  well  as  the  good 
of  society,  truly  and  properly  urged,  would  render  the 
appointment  of  death  for  the  penalty  of  his  crime,  (as- 
suming it,  as  in  the  case  of  murder,  to  be  an  act  of  jus- 
tice,) the  highest  act  of  mercy  also. 


CHAPTER  XV. 

TENDENCY    OF    THE     COMMON     REASONINGS    AGAINST    CAPITAL     PUNISH-- 
MENT,    TO    WEAKEN    THE    SANCTIONS     OF   THE    DIVINE    GOVERNMENT. 

RETRIBUTIVE    JUSTICE    A    REALITY. PROPHETIC     ASPECT    OF     THE 

PENALTY     OF     DEATH     FOR     MURDER. POWER    AND     SOLEMNITY    OF 

THE    ARGUMENT    FROM    ANALOGY. CONCLUSION. 

THE  argument  from  Expediency  is  one  that  some  men 
love  to  dwell  upon  too  exclusively ;  but  in  such  exclu- 
siveness  we  are  not  fond  of  it.  Not  because  we  distrust 
it ;  it  is  powerful,  and  in  its  legitimate  place,  correct ; 
but  because,  by  a  sort  of  Popish  tendency,  it  is  so  often 
hoisted  out  of  its  legitimate  place,  to  lord  it  over  the 
word  of  God,  the  reason  and  the  conscience.  In  the 
present  instance,  taken  alone,  it  tends  to  lower  the  sub- 
ject. There  are  higher  grounds  to  rest  upon,  than  any 
that  mere  -expediency  understands  or  notices.  Even  in 
the  penal  inflictions  of  this  world  we  see  an  image  of  the 
Divine  Justice,  which,  though  inadequate,  is  awful  and 
grand. 

Some  men  in  their  reasonings  seem  unwilling  to  ad- 
mit of  such  a  reality  as  Justice  apart  from  Expediency. 
They  do  not  even  include  it  as  in  any  way  an  end  in 
their  philosophy  of  penal  inflictions.  They  would  have 
no  such  thing  as  Justice,  retributive  Justice,  if  it  were 


RETRIBUTIVE   JUSTICE.  221 

not  to  deter  men  from  crime.  This  mistake  lies  at  the 
foundation  of  all  false  reasonings  on  this  subject :  it 
would  exclude  Capital  Punishment  from  the  universe, 
from  the  government  of  God.  There  is  such  a  thing  as 
Justice,  retributive  Justice,  besides  and  apart  from  the 
purpose  of  security  against  crime,  or  the  necessity  of  the 
guardianship  of  society  and  the  universe.  The  idea  is 
in  our  souls ;  the  prophecy  is  in  our  consciences ;  the 
revelation  is  in  God's  word  ;  the  REALITY  is  in  Eternity ! 
There  is  a  just  penalty,  just  in  itself,  though  we  never 
rise  to  it  here  :  and  no  man  will  probably  say,  when  a 
murderer  is  hung  for  his  crime,  that  this  was  all  he  de- 
served, though  all  that  society  could  inflict.  The  com- 
mon proverb,  Hanging  is  too  good  for  him,  shows  a  deep 
under-current  of  conviction  in  some  cases  as  to  the  na- 
ture of  Justice.  What  a  man  deserves  he  never  receives 
here  ;  if  he  did,  this  would  be  the  place  of  final  judg- 
ment, this  the  scene  of  final  retribution.  The  utmost 
that  can  be  done  here  is  but  a  shadowing  forth  of  the 
nature  of  Justice,  an  approximation  to  reality.  There 
is  an  Image,  a  Miniature,  a  Prophecy  of  that  which  is  to 
come  ;  and  as  such  we  should  regard  human  justice ; 
not  a  creature  of  expediency  merely,  but  an  image  and 
a  humble  imitator  of  Eternal  Truth.  "  Though  to  give 
timely  warning  and  deter,"  remarks  Mr.  Wordsworth, 

Though  to  give  timely  warning  and  deter 
Is  one  great  aim  of  Penalty,  extend 
Thy  mental  vision  farther,  and  ascend 
Far  higher,  else  full  surely  thou  shalt  err. 
20* 


222  CAPITAL   PUNISHMENT. 

What  is  a  State  ?     The  wise  behold  in  her 
A  creature  born  of  Time,  that  keeps  one  eye 
Fixed  on  the  Statutes  of  Eternity, 
To  which  her  judgments  reverently  defer. 

As  such,  she  speaks  powerfully  to  the  conscience  j  her 
voice  is  glorious ;  nor  would  we  have  that  voice  hushed 
or  weakened. 

It  is  one  of  the  strongest  objections  which  a  believer 
in  Christianity  must  feel  to  the  whole  reasonings  of  some 
men  on  this  subject,  that  they  tend  to  weaken  and  de- 
stroy the  sanctions  not  only  of  the  human  government, 
but  of  the  Divine.  The  same  false  ideas  of  benevolence, 
the  same  sickly  and  ill-placed  tenderness,  the  same  false 
sentimentality  and  compassion,  that  lead  men  to  exercise 
a  deeper  sympathy  with  the  murderer,  brought  to  his 
trial,  than  with  the  murdered  man,  stricken  down  and 
thrust  into  an  untimely  grave;  the  same  habits  of 
thought  and  feeling,  that  lead  them  to  dwell  with  more 
of  pity  and  complacency  upon  the  guilty  man,  than  of 
hatred  and  abhorrence  upon  the  guilt ;  are  transferred 
to  the  case  of  criminals  under  the  Divine  government, 
and  lead  men  to  argue  that  it  is  impossible  that  a  God  of 
Mercy  can  ever  execute  the  penalty  of  Eternal  Death 
upon  any  offender.  All  this  leads  men  to  pity  the  sin- 
ner and  forget  the  sin ;  to  take  the  part  of  the  sinner 
against  God,  and  to  forget  God's  insulted  holiness,  his 
abused  goodness,  the  violated  majesty  of  his  Law,  the  in- 
jury against  the  universe.  The  incalculable  evil  of  sin 
is  but  little  noted,  and  instead  of  a  spontaneous  defence 


THE    DIVINE    PUNISHMENTS  223 

of  the  Law  against  the  contemner  of  its  majesty  and 
goodness,  the  goodness  of  God  itself  is  challenged  and 
questioned,  in  reference  to  the  very  provisions,  by  which 
the  holiness  and  happiness  of  the  universe  are  secured. 

Doubtless,  such  reasoning  would  have  been  far  more 
familiar,  more  universal  than  it  is,  if  God  had  never 
promulgated  the  enactment  connecting  the  penalty  of 
death  with  the  crime  of  murder.  In  establishing  this 
statute,  he  has  done  much  to  render  the  judgment  of  the 
natural  conscience  of  mankind  consentaneous  with  the 
voice  of  his  word,  in  regard  to  the  punishment  of  sin  in 
Eternity.  If  this  sanction  had  never  been  annexed  to 
human  law,  it  would  have  been  more  difficult  than  it 
now  is  to  enforce  upon  the  conscience  the  sanctions  of 
the  Divine  Law ;  there  would  have  been  more  of  infidel- 
ity in  regard  to  those  sanctions  ;  a  more  universal  effort 
to  deny  and  reproach  them  as  false,  malignant,  and  incon- 
sistent with  the  Divine  Benevolence.  But  the  sternness 
of  Justice  in  the  divine  establishment  of  human  govern- 
ment has  prepared  the  way  for  right  ideas  in  regard  to 
the  Divine  government ;  it  has  assailed  that  false  reason- 
ing beforehand  ;  it  has  proved  a  universal  prophet  in 
men's  hearts  of  the  principles  on  which  God  will  deal 
with  incorrigible  sinners  in  Eternity.  The  argument  is 
one  from  analogy,  and  all  men  feel  it ;  and  the  universal 
affirmative  response  in  all  ages  to  the  justice  and  propri- 
ety of  the  dreadful  penalty  of  death  for  murder,  against 
him  who  aims  at  the  existence  of  the  human  government, 
is  accompanied  by  a  response  as  irresistible  to  the  jus- 


224  CAPITAL    PUNISHMENT. 

tice  of  the  sentence  of  eternal  death  against  the  con- 
temner  of  the  Divine  government. 

God  in  his  providence,  as  well  as  in  his  word,  is  an  in- 
finitely  wise  instructor  of  his  creatures.  He  has  trained 
the  common  conscience  of  mankind  on  some  fundamental 
principles,  essential  to  the  safety  of  the  universe,  so  pow- 
erfully, that  the  utmost  efforts  of  infidelity  against  a  rev- 
elation that  contains  those  principles  can  effect  little  more 
than  a  manifestation  of  hatred  ;  can  do  little  or  nothing 
to  shake  the  inmost  convictions  of  the  human  mind,  to 
upset  the  established  foundations  of  human  opinion,  to 
alter  the  common  elements  of  judgment,  to  make  the 
voice  of  the  human  conscience  prophesy  falsely.  What 
God  did  in  regard  to  the  atonement  by  the  institution  of 
sacrifices,  producing  an  expectation  of  the  atonement, 
and  preparing  the  way  for  a  belief  in  it,  he  hath  done  in 
regard  to  the  retributive  principles  of  the  divine  govern- 
ment, by  annexing  the  penalty  of  death  to  the  laws  of  a 
human  government,  producing  an  expectation  of  the  na- 
ture of  the  divine  justice,  and  preparing  for  the  response 
of  faith  to  the  terms  of  its  revelation. 

These  are  the  grounds  on  which  we  are  content  to  rest 
this  argument.  We  stand  upon  eternal  principles.  We 
ask  for  the  final  causes  of  this  enactment,  and  we  find 
them  not  only  in  the  exigencies  of  human  society,  but  in 
the  eternal,  fundamental  principles  of  the  Divine  govern- 
ment. It  is  by  the  light  of  such  principles  that  we  de- 
sire to  judge  all  human  institutions  ;  and  it  is  a  miniature 
or  shadow  of  such  principles  that  we  expect  to  find  in  all 


LAW   OF   RETRIBUTION.  225 

ordinances  and  forms  in  this  world,  that  are  established 
by  divine  authority ;  a  family  likeness,  if  we  may  so 
speak,  between  such  laws  in  this  world,  and  what  Plato, 
with  almost  supernatural  wisdom,  hath  called  THEIR  sis- 

TERS,  THE    LAWS   IN  THE  OTHER  WORLD.*       For  according 

to  that  remark  of  the  son  of  Sirach  in  the  book  of  Eccle- 
siasticus,  on  which  Bishop  Butler  erected  the  mighty  su- 
perstructure of  his  Analogy  of  Religion  natural  and  re- 
vealed, "  All  things  are  double  one  against  another ; 
and  he  hath  made  nothing  imperfect."f  He  hath  set 
one  thing  over  against  another.  He  hath  put  a  sword 
into  the  hands  of  the  human  government ;  a  sword  is  also 
wielded  in  the  Divine  government.  We  see  its  glitter 
here  ;  it  is  the  foreboding  of  its  flashing  terrors  in  Eter- 
nity. For  "  God  judgeth  the  righteous,  and  God  is  angry 
with  the  wicked  every  day.  If  he  turn  not,  he  will 
whet  his  glittering  sword ;  he  hath  bent  his  bow  and 
made  it  ready.  For  it  is  written,  Vengeance  is  mine,  I 
will  repay,  saith  the  Lord." 

There  is  deep  and  awful  truth  in  these  passages,  mer- 
ciful in  their  sternness,  blessed  in  their  salutary  power 

*  The  laws  in  this  world  are  represented  as  speaking  to  their  ene- 
mies, "  We  shall  fill  you  with  trouble  whilst  you  live,  and  when  you 
mingle  with  the  dead,  our  Sisters,  the  Laws  of  Hell,  will  give  you  a 
fearful  reception,  knowing  that  you  endeavoured  to  ruin  us."  'Hpcis 
ri  cot  %a\eiravovn£v  $MVTI  nal  IKCI  ol  fyxerepoi  dtieXtyol  oi  iv^Atov  v6^oi  ofa 
ffyeifusasfmofctovTaiysiddTts  STI  /ecu  fip&$  iiri-^eipriyag  diro\C(rai  TO  aov  f 

The  Dialogues  of  Plato:  KPITJ2N :  §  16. 

t  Ecclesiasticus42:24. 


226  CAPITAL    PUNISHMENT. 


of  warning.  Every  man's  conscience  responds  to  them, 
and  into  the  very  elements  of  language  God  in  his  prov- 
idence has  so  interwoven  the  ideas  contained  in  them, 
that  to  use  the  English  tongue  itself,  is  to  be  familiar 
with  their  meaning. 

There  is  a  word,  from  which  men,  beneath  the  power 
of  a  guilty  conscience,  shrink  back,  pale  and  affrighted. 
There  are  those,  who  would  expunge,  if  they  could,  that 
word  from  the  language,  and  its  idea  from  all  creeds  of 
belief  and  codes  of  law,  penal,  moral,  theological — 
RETRIBUTION  !  If  the  character  of  that  region  of 
wo,  over  the  gates  of  which  the  poet  Dante  affixed  so  ter- 
rible an  inscription : 

Lasciate  ogni  speranza,  voi  ch'  entrate : 
All  hope  abandon,  ye  who  enter  here  !* 

could  be  condensed  into  one  word,  it  would  be  this, — 
RETRIBUTION,  not  Expediency.  Retribution  itself  is  in- 
deed expedient ;  it  is  the  highest  expediency ;  but  that 

*  DANTE.     Canto  III.     The  whole  of  this  celebrated  inscription, 
translated  by  Gary,  is  as  follows : 

"  Through  me  you  pass  into  the  city  of  wo : 
Through  me  you  pass  into  eternal  pain : 
Through  me  among  the  people  lost  for  aye. 
Justice  the  founder  of  my  fabric  moved: 
To  rear  me  was  the  task  of  power  divine, 
Supremest  wisdom,  and  primeval  love. 
Before  me  things  create  were  none,  save  things 
Eternal,  and  eternal  I  endure. 
All  hope  abandon,  ye  who  enter  here." 


LAW   OF   RETRIBUTION.  227 

is  not  God's  reason  for  it.  We  believe  that  in  the  nature 
of  things,  no  injury  can  die,  no  wrong-doing  pass  with- 
out recompense.  There  is  this  provision  in  the  universe : 
Evil  felt  balances  evil  committed.  There  is  no  escape 
from  this  tremendous  law ;  none,  but  in  the  blood  of 
Jesus  Christ,  which  cleanseth  from  all  sin ;  none,  but  in 
the  sacrifice  of  Christ,  which  maketh  an  atonement; 
none,  but  by  that  act  of  Faith  in  Christ,  in  which  the 
soul,  personally  resting  upon  him  for  relief,  pardon,  and 
shelter,  finds  itself  no  more  under  Law,  with  its  stern, 
immitigable  PENALTY,  but  under  Grace,  with  its  Heaven 
of  holiness  and  blessedness  now  and  for  ever.  Now  do 
we  praise  God,  both  for  such  a  Salv-ation,  and  for  such 
righteous  terrors  of  the  Law,  as  may  teach  guilty  men 
their  need  of  it,  and  constrain  them  to  flee  to  it. 

BLESSING,  AND  HONOUR,  AND  GLORY,  AND  POWER,  BE 
UNTO  HIM  THAT  SITTETH  UPON  THE  THRONE,  AND  UNTO  THE 
LAMB  FOR  EVER  AND  EVER. 


ESSAYS  ON  PUNISHMENT  BY  DEATH, 

PART  SECOND. 


21 


ARGUMENT 


IN  REPLY  TO 


J,   L,    O'SULLIVAN,   ESQ., 


DURING   THE   DEBATE 


IN  THE  BROADWAY  TABERNACLE 


IN  1843. 


INTRODUCTION. 


ALTHOUGH  it  will  be  found  that  some  points  in  the  fol- 
lowing argument  are  somewhat  occupied  and  dealt  with 
in  the  preceding  pages,  yet  it  has  been  deemed  best  to 
let  it  stand  with  but  little  abridgment  or  alteration.  So 
many  applications  have  been  made  to  the  author  for 
copies  of  the  argument  in  the  debate,  that,  even  at  the 
hazard  of  some  little  repetition,  or  the  appearance  of  it, 
it  is  preserved  nearly  as  it  was  first  published.  In  its 
statistics  it  is  perfectly  impregnable,  no  reply  having  been 
able  to  destroy  the  authority  of  the  Belgian  Minister  of 
Justice  in  his  official  report. 

The  statistical  argument  from  the  tables  in  that  Report 
of  M.  Ernst,  has  been  examined  anew  with  great  care. 
No  deficiency  can  be  found  in  it.  The  attempt  to  set  it 
aside  or  to  evade  its  force  are  fruitless.  Neither  suppo- 
sitions nor  probabilities  will  answer  against  exact  crimi- 
nal  statistics  under  the  hand  of  the  Minister  of  Justice 
addressing  the  king. 

21* 


DEBATES  ON  PUNISHMENT  BY  DEATH. 


ARGUMENT  OF  THE  FIRST  EVENING. 

§  1.     THE     ORDINANCE     IN     GENESIS     INTENDED     AS    A    COMMAND. 

FOR  the  interpretation  of  this  ordinance  as  a  command, 
we  have  the  authority,  first,  of  the  greatest  commenta- 
tors that  have  ever  appeared  in  the  world.  Among  them 
I  shall  mention  the  names  of  Hammond,  Grotius,  Cal- 
vin, Matthew  Henry,  Michaelis,  and  Rosenmueller. 
Second,  for  the  particular  construction  of  the  passage, 
according  to  the  laws  of  the  Hebrew  language,  we  have 
the  authority  of  the  greatest  Hebrew  scholars  that  the 
world  has  ever  known.  If  you  will  turn  to  the  Hebrew 
grammars  of  Gesenius,  Stuart,  or  Nordheimer,  you  will 
find  that  for  the  imperative  in  this  case  no  other  form 
could  be  used  but  that  which  is  used,  by  man  shall  his 
blood  be  shed.  The  Hebrew  imperative  has  no  third 
person,  and  the  future  is  always  used  in  its  stead.  But 
not  only  so,  the  future  supplies  the  form  of  the  impera- 
tive throughout  the  whole  decalogue,  not  one  of  the  pre- 
cepts of  which  is  any  more  mandatory  in  its  form  than 


236  CAPITAL    PUNISHMENT, 

this  ordinance.  But  this  is  not  all :  I  can  bring  you  a 
parallel  passage  from  the  book  of  Proverbs,  (xxviii.  17,) 
by  which  you  may  see  that  even  if  you  put  aside  the 
imperative  form,  the  assertion  in  the  ordinance  is  still  of 
the  nature  of  an  injunction.  "  The  man  that  doeth  vio- 
lence to  the  blood  of  any  person  shall  flee  to  the  pit ;  let 
no  man  stay  him."  That  is,  he  shall  immediately  die. 
It  cannot  mean,  he  will  flee  to  the  pit,  for  he  certainly 
will  not  if  he  can  help  it ;  but,  he  shall  do  this ;  he 
shall  immediately  be  cut  off;  and  to  make  this  certain,  it 
is  added,  Let  no  man  stay  him  ; — let  no  man  interfere  to 
save  him ; — let  no  man  prevent,  or  seek  to  prevent,  that 
immediate  destruction,  which  is  the  penalty  of  his  crime. 

§  2.     METHODS    PROPOSED    FOR    EVADING    THE    FORCE    OF    THIS 
ORDINANCE. 

It  certainly  is  not  wonderful  that  the  advocates  for  the 
abolition  of  Capital  Punishment  should  wish  to  evade  the 
force  of  this  statute  :  it  is  the  citadel  of  our  argument, 
commanding  and  sweeping  the  whole  subject.  All  else 
is  a  mere  guerilla  warfare,  if  you  cannot  carry  this 
entrenchment.  In  the  matter  of  utility  and  expediency, 
we  are  in  as  strong  possession  of  the  ground  as  in  the 
matter  of  the  Scriptures  and  theology,  and  this  I  propose 
to  show  conclusively.  The  meaning  of  this  statute  is 
first  to  be  settled,  and  defended  from  objections.  Both 
the  context  and  the  interpretation  show  manifestly  that  it 
is  a  command,  an  injunction,  a  law.  Two  methods  have 
been  proposed  for  its  annihilation  ;  first,  to  render  it 


ABSURD   EVASIONS.  237 


whatsoever  sheddeth  man's  blood,  and  to  restrict  its  appli- 
cation to  beasts  ;  and  second,  to  treat  it  as  a  mere  pre- 
diction. I  shall  show  the  absurdity  of  these  positions, 
and  then  proceed  in  my  argument.  The  first  position  is 
impossible  in  the  interpretation,  since,  if  you  even  ren- 
dered it,  whatsoever,  it  includes  both  man  and  beast. 
But  it  is  still  more  absurd  in  its  nature  and  consequences ; 
for  it  amounts  to  this ;  that  God,  at  the  opening  of  the 
world,  and  in  regard  to  the  crime  of  murder,  is  legisla- 
ting for  brutes  and  not  for  men  !  If  a  wild  beast,  driven 
by  hunger,  or  hunted  and  provoked,  kills  a  man,  capital 
punishment  shall  be  executed  upon  him.  If  a  man 
murders  his  fellow-man,  no  blood  must  be  exacted. 
Suppose,  then,  (to  use  a  forcible  illustration  for  which  I 
am  indebted  to  the  kindness  of  a  friend,)  a  malicious 
neighbour  in  that  early  age  to  have  set  a  trained  blood- 
hound on  a  man  whose  life  he  was  seeking  ;  and  the 
obedient  animal,  true  to  his  own  nature,  and  an  admira- 
ble instrument  of  murder  for  his  master,  takes  the  life- 
blood  of  his  victim.  Must  the  man  be  arraigned  and 
executed  on  the  charge  of  murder  ?  By  no  means,  say 
the  humane  expositors  of  this  law  of  God ;  that  would 
be  to  add  murder  to  murder.  Let  the  man  escape,  but 
the  dog  must  be  hung ;  the  ferocious  brute,  that  knew 
no  better  than  instinctively  to  do  what  his  master  bade 
him,  and  so  to  slay  a  man  made  in  the  image  of  God, 
deserves  to  die.  Let  the  court  proceed  to  condemn  the 
blood-thirsty  quadruped  ;  and,  to  show  the  sacredness  of 
human  life,  and  protect  society  from  the  incursions  of 


238  CAPITAL   PUNISHMENT. 

wild  beasts,  let  the  creature  be  solemnly  executed ;  and 
let  it  be  done  in  the  sight  of  all  the  other  beasts  and 
bloodhounds  you  can  summon  to  the  spectacle  ;  for  the 
statute  is,  "  Whatsoever  sheddeth  man's  blood,  by  man 
shall  that  beast's  blood  be  shed  !" 

Perhaps  now  you  will  choose  to  abandon  this  ground, 
and  admitting  that  it  refers  to  man,  you  contend  that  it  is 
merely  a  prediction.  Now  mark  the  consequences.  It 
is  either  manifestly  false,  and  has  not  been  fulfilled,  or 
the  prediction  itself  has  caused  its  own  fulfilment,  and 
must  have  been  given  for  this  purpose.  But  supposing 
it  to  be  a  prediction,  is  it  not  a  little  singular  that  you 
yourself  are  opposing  its  fulfilment  ?  If  it  be  really 
what  you  say,  a  prediction  of  Jehovah,  do  you  believe 
that  you  can  prevent  its  fulfilment?  Certainly,  if  I 
thought  God  had  predicted  that  every  murderer  should 
be  punished  with  death,  I  should  not  dream  of  being 
able  to  prevent  it.  Your  efforts  against  capital  punish- 
ment are  unavailing,  if  God  has  here  predicted  that 
capital  punishment  shall  prevail.  But  not  only  so,  they 
are  presumptuously  irreligious.  The  Emperor  Julian, 
the  apostate,  to  show  his  spite  against  Christianity,  and 
to  falsify  one  of  its  most  important  predictions,  tried  to 
build  again  the  walls  and  temple  of  Jerusalem,  but  the 
hand  of  Heaven  prevented  him.  You  are  trying  to 
destroy  an  institution,  which  you  yourself  contend  that 
God  has  predicted  shall  stand. 

God  either  meant  that  the  prediction  should  be  fulfill- 
ed,  or  he  did  not.  If  he  did,  you  are  opposing  God's  in- 


DURATION    OF    THE    STATUTE.  239 

tention,  and  endeavouring  to  prove  him  a  liar.  If  you 
say  that  he  did  not  mean  it  should  be  fulfilled,  you  make 
the  sentence  a  nullity  of  idle  words,  and  God  a  trifler. 
Moreover,  you  contend  that  capital  punishmenkis  wrong ; 
in  effect,  you  argue  that  it  is  a  sin.  Here,  then,  conse- 
quently, is  a  sentence  from  Jehovah,  which  you  say  is  a 
prediction  concerning  the  prevalence  of  a  sin ;  but 
which  is  so  worded,  that  the  whole  world  for  four  thou- 
sand years  have  considered  it  a  command,  and  acted  upon 
it ;  the  Hebrews  themselves,  under  the  very  guidance  of 
God,  taking  it  as  a  law,  and  acting  accordingly.  As- 
suredly this  supposes  in  the  framer  of  such  a  prediction 
either  wilful  deception  or  the  most  astounding  stupidity. 
To  put  it  in  a  strong  light,  let  me  ask  what  would  you 
think,  if  God,  intending  to  forbid  stealing,  had  predicted 
that  men  will  steal,  but  had  uttered  this  prediction  in 
such  a  manner,  that  men  for  four  thousand  years  should 
have  interpreted  it  as  a  command  to  steal,  and  acted  ac- 
cordingly, the  mistake  never  once  being  corrected  in  all 
after  legislation !  But,  indeed,  the  efforts  to  evade  this 
statute,  involve  absurdities  in  every  direction. 

§  3.    PROOF    OF   THE    UNIVERSAL   APPLICATION,    AND    UNLIMITED    DURA- 
TION   OF    THIS    STATUTE. 

THREE  things  are  noted  in  this  statute ;  its  PRIORITY 

TO  ALL    LEGISLATION  ',    ITS   COMPREHENSIVENESS  ;    AND    ITS 

UNLIMITED  DURATION.  It  comes  immediately  and  solely 
from  God.  It  was  meant  for  all  mankind.  Its  author- 
ity continues  as  long  as  the  race.  As  it  is  solely  from 


240  CAPITAL    PUNISHMENT. 

God,  God  only  could  repeal  it.  He  never  has  repealed  it, 
and  it  is  just  as  binding  upon  us,  as  it  was  upon  the  gen- 
eration to  whom  it  was  first  given.  If  you  deny  its  ap- 
plication to  us,  to  nations  and  governments  now,  you 
must  point  out  the  place  where  its  application  stops.  Is 
it  in  the  first  generation,  when  the  scarcity  of  men,  and 
their  relationship  with  one  another  made  it  less  necessary  ; 
or  is  it  at  an  after  period,  when  men  and  crimes  increas- 
ed together,  so  that  every  year  that  the  race  lived  made 
it  more  necessary  ?  It  is  the  first  law  in  the  world  ;  but 
not  only  so,  it  is  the  first  law  of  God  in  the  world. 
What  subject  would  he  be  likely  to  legislate  upon  in 
such  circumstances  ?  One  of  temporary,  transitory  im- 
portance, or  one  which,  beginning  with  the  race,  should 
last  with  the  race  ?  The  law,  as  well  as  the  covenant 
connected  with  it,  was  intended,  beyond  all  doubt,  for  all 
mankind  ;  you  cannot  stand  at  any  point  in  the  stream 
of  time,  or  the  history  of  man,  and  tell  me,  There  this 
legislation  stops  ;  you  can  no  more  separate  its  obligation 
now,  from  its  obligation  in  the  age  of  Noah,  than  you 
can  stand  at  any  point  in  the  river  that  supplies  this  city 
with  pure  water,  and  tell  me  what  particular  drops  find 
their  way  into  the  reservoir,  and  what  not. 

It  is  not  to  be  denied  that  the  covenant  of  God  with 
Noah  on  this  occasion  covers  the  whole  transaction  ;  in- 
eluding  the  promise  of  a  blessing;  the  grant  of  animal 
food,  the  ordinance  in  question,  the  command  to  be  fruit- 
ful and  multiply,  and  the  assurance  that  there  should  be 
no  future  deluge.  Now  of  this  covenant  God  expressly 


STATUTE  NEVER  REPEALED.  241 

says  that  it  was  meant  for  perpetual  generations,  as  long 
as  the  world  should  stand,  an  everlasting  covenant. 

The  comprehensive  application  and  perpetual  obliga- 
tion of  this  law,  for  Noah,  and  his  posterity  to  the  end 
of  time,  unless  revoked  by  the  Divine  Legislator,  are  as 
unquestionable  as  the  right  to  eat  animal  food.  This 
right  was  granted  to  Noah  and  his  posterity  for  all  man- 
kind  to  the  end  of  time,  unless  expressly  revoked  by  the 
Divine  Legislator.  Does  any  man  doubt  it  ?  Does  any 
man  believe  that  the  grant  to  eat  animal  food  was  made 
only  to  Noah,  or  only  to  that  generation,  or  only  to  the 
Hebrews  ?  But  the  same  arguments,  which  would 
throw  off  the  binding  force  of  this  statute,  would  destroy 
the  permissive  force  of  this  grant.  You  cannot  show 
from  this  passage,  that  it  is  lawful  for  us  to  eat  animal 
food,  if  you  cannot  also  show  that  it  is  binding  on  us  to 
punish  the  murderer  with  death.  You  cannot  point  out, 
in  God's  after-legislation,  any  statute,  which  either  re- 
vokes the  grant  or  repeals  the  obligation.  If  its  obliga- 
tion ceased  at  any  time,  or  with  any  race,  when  did  it 
cease,  and  how  did  men  know  it  ?  That  the  law  contin- 
ued to  be  fulfilled,  we  know  from  all  history,  both  sacred 
and  profane ;  when,  or  how,  or  by  what  agency  did  it 
cease  to  be  a  law,  though  its  fulfilment  continued  ? 

In  the  terms  of  the  law  itself,  there  is  positive  proof 
that  it  remains,  and  is  binding  now.  The  common  sense 
of  law  lays  down  a  maxim,  which  no  lawyer  would  set 
aside,  on  which  this  permanence  may  be  established.  It 
is  this — lex  stat  dum  ratio  manet ;  the  law  stands  while 
22 


242  CAPITAL    PUNISHMENT. 

the  reason  remains.  What  was  the  reason  for  this  law  ? 
Does  that  reason  remain  ?  The  reason  is  connected  with 
the  law,  and  is  given  in  God's  own  words ;  for  in  the 
image  of  God  made  he  man.  Does  this  reason  still  ex- 
ist ?  Then  assuredly,  the  law  is  still  in  force  ;  for,  how- 
ever  men  may  act  without  reason,  and  change  without 
reason,  God  does  not.  The  law  remains  while  the  rea- 
son remains. 

This  was  in  part  the  meaning  of  our  Saviour,  when  he 
said  that  not  one  jot  or  tittle  should  pass  from  the  law, 
till  all  should  be  fulfilled  ;  till  its  purpose  should  have 
been  accomplished,  or  the  reason  should  have  ceased  to 
exist.  Are  we  made  in  the  image  of  God  ?  Then,  on 
the  strictest  principles  of  reasoning,  this  law  is  still  in 
force.  A  government  now,  is  as  much  bound  to  put  to 
death  the  man  who  kills  his  fellow-man,  as  the  govern- 
ment, of  whatever  nature  you  choose  to  suppose  it,  to 
sustain  the  authority  of  which  this  law  was  first  promul- 
gated. A  government  attempting  to  set  aside  or  do  away 
this  law,  transcends  its  sphere  ;  it  legislates  against  the 
divine  legislation.  It  has  no  more  right  to  do  this  than 
it  has  to  abrogate  the  law  against  stealing.  It  is  as  great 
a  solecism  to  commence  the  reformation  of  human  legis- 
lation with  the  abrogation  of  this  law,  as  it  would  be  for 
a  preacher  of  the  gospel  to  commence  the  reformation  of 
human  society,  by  denying  a  divine  revelation. 

This  law  is  as  obligatory  as  any  statute  in  the  deca- 
logue. Its  authority,  like  that  of  the  decalogue,  is 
demonstrable,  because  the  precept  is  a  moral  duty ;  a 


PENALTY    INVARIABLE.  243 

moral  duty  to  society,  a  duty  which  a  benevolent  and 
wise  regard  to  the  interests  of  society  renders  binding. 
It  is  just  as  demonstrable  as  the  authority  of  the  princi- 
ple, "thou  shalt  love  thy  neighbour  as  thyself."  But  it 
has  one  point  in  its  favour  over  and  above  the  decalogue ; 
because  it  was  addressed  formally  to  all  mankind.  The 
decalogue  was  meant  for  all  mankind  unquestionably  ; 
its  essential  nature,  as  necessary  for  man's  highest  inter- 
ests, proves  this.  The  prefix  to  the  decalogue  was  limit- 
ed ;  Hear,  O  Israel.  The  prefix  to  this  statute  against 
murder,  was  addressed  to  all  the  inhabitants  of  the  world. 
In  fact,  this  is  one  of  the  laws  of  the  decalogue  itself, 
with  an  invariable  penalty  stated.  It  is  neither  more 
nor  less  than  the  law,  Thou  shalt  not  kill,  with  the  pen- 
alty for  killing  fixed  by  the  lawgiver.  This  statute  to 
Noah,  and  every  statute  in  the  decalogue,  stands  on  the 
same  basis  of  moral  goodness,  by  the  same  moral  neces- 
sity. The  statute  springs  out  of  what  I  may  call  the 
necessity  of  love — the  necessity  of  watching  over  and 
protecting  the  welfare  of  society — the  necessity  of  pro- 
tecting the  innocent  against  the  passions  of  the  depraved. 
The  nature  of  goodness  compelled  the  promulgation  of 
this  law.  But  a  law  is  nothing  without  a  penalty  ;  and 
the  same  goodness  that  necessitates  the  law,  necessitates 
also  the  penalty  and  the  enforcement. 


244  CAPITAL    PUNISHMENT. 


§  4.    PROOF   AND     ILLUSTRATION    OP   THE     MEANING    OF   THIS     STATUTE 
FROM   THE    SUCCEEDING   LEGISLATION    AMONG    THE    HEBREWS. 

Suppose  now,  that  an  intelligent  being,  having  heard 
the  first  promulgation  of  this  law  to  Noah,  should  have 
been  transported  to  some  distant  quarter  of  the  universe, 
not  to  return  to  this  world  for  the  space  of  twelve  hun- 
dred years.  Would  he  expect  to  find  this  statute  in 
existence  ?  And  if  he  did  find  it  in  existence,  with  other 
similar  statutes  founded  on  it,  would  not  this  be  an  addi- 
tional proof,  if  such  were  needed,  of  the  universal  and 
perpetual  intent  and  obligation  of  this  law  ?  Let  us  then 
take  the  place  of  this  supposed  angelic  being,  and  visit 
the  world  after  twelve  hundred  years  have  passed  away. 
We  will  not  go  to  any  barbarous,  inhuman  part  of  it,  for 
you  might  say  that  such  a  race  had  interpreted  this 
statute  according  to  their  own  cruelty  and  ignorance. 
There  is  a  bright  spot  on  the  earth's  dark  surface ;  you 
may  know  it  by  the  mountain  cedars,  and  the  groves  of 
palm  trees.  A  supernatural  radiance  rests  upon  it,  and 
a  wall  of  light  infolds  and  circles  it,  reaching  from  earth 
to  heaven.  There  is  a  temple  there,  but  in  it  no  idol  is 
to  be  found  ;  but  only  the  sublime  presence  of  the  invisi- 
ble God  !  Now  let  us  open  a  book  of  the  legislative  wis- 
dom of  this  elevated  and  favoured  people.  "  Whoso 
killeth  any  person,  the  murderer  shall  be  put  to  death  by 
the  mouth  of  witnesses.  Ye  shall  take  no  satisfaction 
for  the  life  of  a  murderer  which  is  guilty  of  death ;  but 
he  shall  surely  be  put  to  death.  So  ye  shall  not  pollute 


ILLUSTRATIVE    EVIDENCE.  245 

the  land  wherein  ye  are  ;  for  blood,  it  defileth  the  land  ,• 
and  the  land  cannot  be  cleansed  of  the  blood  that  is  shed 
therein,  but  by  the  blood  of  him  that  shed  it.  Defile  not 
therefore  the  land  which  ye  shall  inhabit,  wherein  I 
dwell ;  for  I  the  Lord  dwell  among  the  children  of  Is- 
rael." Num.  xxxv.  30-34.  Does  this  look  like  the 
abrogation  of  this  law,  or  the  cessation  of  its  binding 
power  ?  Nay,  is  it  not  the  same  law  repromulgated  far 
more  explicitly, with  the  same  reason  annexed ?  "I  the 
Lord  dwell  among  the  children  of  Israel."  How  re- 
markable is  this  language  !  How  remarkable  the  infer- 
ence !  The  more  closely  and  nearly  God  condescends 
to  dwell  on  earth  among  his  creatures,  the  more  inva- 
riably must  this  law  of  death  to  the  murderer  be  exe- 
cuted ! 

Here  I  wish  it  to  be  distinctly  understood,  that  in  all 
reference  to  the  Mosaic  institutions  so  called,  I  make  it 
not  to  gain  from  them  a  sanction  for  this  law,  but  simply 
to  show  the  light  which  they  throw  upon  it.  The  law 
would  stand  upon  the  same  unquestionable  authority  that 
it  does  now,  if  the  whole  mass  of  revelation  between  the 
book  of  Genesis  and  the  gospel  of  Matthew  were  annihi- 
lated. But  the  illustrative  character  of  the  evidence 
is  wonderful.  It  is  precisely  like  that  which  would  be 
gained  for  any  human  law,  by  tracing  in  accordance 
with  it  a  whole  body  of  precedents  and  conclusions  un- 
interrupted and  unquestioned  for  hundreds  of  years. 

There  is  a  great  distinction  between  the  common  law 
of  the  world  expressed  to  Noah,  and  local  enactments 
22* 


246  CAPITAL    PUNISHMENT. 

for  particular  reasons  among  the  Hebrews.  By  those 
enactments  we  are  not  bound.  The  authority  of  the 
decalogue  we  do  not-  put  merely  upon  the  fact  that  God 
gave  it  to  the  Jews,  but  that  its  principles  are  eternal, 
universal. 

But  perhaps  you  will  say,  This  after  all  is  but  the 
childhood  of  society  ;  the  race  is  only  struggling  towards 
the  perfection  of  humanity ;  these  are  but  tentative 
processes  in  legislation,  which  must  wait  to  be  perfected 
in  the  nineteenth  century.  Let  us  then  leave  the  world 
to  its  progress  a  thousand  years  longer.  Where  are  we 
now  ?  and  what  is  the  condition  of  humanity  ?  The 
Creator  and  Saviour  of  the  world  himself  is  there ;  God 
manifest  in  the  flesh,  the  Wisdom  and  the  love  of  Eter- 
nity, shedding  its  radiance  through  the  veil  of  human 
nature,  adopted  in  mercy  to  mankind.  His  words  are 
all  those  of  love,  and  God  is  love ;  and  yet  he  speaks  of 
death  as  well  as  life,  of  wrath  as  well  as  mercy,  and 
threatens  the  one  while  he  promises  the  other.  You  find 
at  this  period  of  our  Saviour's  abode  in  Judea,  a  great 
abuse  of  the  whole  law  with  all  its  penalties,  for  the 
purposes  of  private  revenge.  Does  the  present  Law- 
giver abrogate  this  statute  ?  No  !  He  condemns  most 
severely  the  spirit  of  revenge,  but  confirms  the  law,  and 
corrects  the  mistakes  of  any  who  supposed  he  would 
destroy  it.  "  Think  not  that  I  am  come  to  destroy  the 
law  or  the  prophets ;  I  am  not  come  to  destroy  but  to 
fulfil." 


THE    SWORD    IN    MAGISTRACY.  247 


§  5.    PROOF    AND    ILLUSTRATION    FROM    THE    EPISTLE    TO    THE    ROMANS, 
AND    FROM    PAUL'S    EXAMPLE. 

Step  now,  thirty  years  after  the  crucifixion  of  this 
blessed  Being,  into  the  zenith  of  civilization  and  splen- 
dour, the  capital  of  the  world,  and  there  listen  to  a  new 
voice  of  revelation  on  this  subject.  "  Let  every  soul  be 
subject  unto  the  higher  powers.  For  there  is  no  power 
but  of  God ;  the  powers  that  be  are  ordained  of  God. 
Whosoever  therefore  resisteth  the  power,  resisteth  the 
ordinance  of  God  ;  and  they  that  resist  shall  receive  to 
themselves  damnation.  For  rulers  are  not  a  terror  to 
good  works,  but  to  the  evil.  Wilt  thou  then  not  be  afraid 
of  the  power  ?  Do  that  which  is  good,  and  thou  shalt 
have  praise  of  the  same.  For  he  is  the  minister  of  God 
to  thee  for  good.  But  if  thou  do  that  which  is  evil,  be 
afraid  ;  for  he  beareth  not  the  sword  in  vain  ;  for  he  is 
the  minister  of  God,  a  revenger  to  execute  wrath  upon 
him  that  doeth  evil."  Rom.  xiii.  1 — 4. 

Two  things  are  to  be  specially  noted  in  this  passage  ; 
the  Divine  origin  of  government  as  an  ordinance  of  God ; 
and  the  power  of  inflicting  death  as  the  minister  of  God. 
If  these  two  things  be  not  recognized  in  this  passage, 
then  there  is  no  meaning  in  it.  The  sword,  as  the  sym- 
bol of  power  in  the  magistracy,  indicated  not  an  inferior 
power,  merely  ;  but  the  well-known  highest  power  of 
life  and  death,  which,  as  in  all  such  cases,  is  taken  as 
the  symbol.  This  power  Paul  sanctions  under  the  Chris- 
tian dispensation,  as  springing  from  and  sustained  by  the 


248  CAPITAL    PUNISHMENT. 

ordinance  of  God.  There  is  no  other  possible  view  that 
can  be  taken  of  the  passage.  There  is  in  it  no  sugges- 
tion of  any  repeal  of  any  law — no  appeal  to  the  milder 
genius  of  the  Saviour's  dispensation — no  appeal  to  the 
sermon  on  the  Mount — no  retreat  from  your  savage 
genius  of  the  Old  Testament  to  the  mild,  forgiving  spirit 
of  the  New  ;  but  an  unhesitating,  explicit  recognition 
and  re-promulgation  of  the  lawfulness  and  divine  au- 
thority of  the  punishment  of  death  by  the  magistrate,  as 
the  revenger  of  crime,  the  minister  of  God  to  execute 
wrath  upon  the  guilty.  The  phrase  "  bearing  the 
sword  "  could  have  been  understood  by  those  to  whom 
Paul  was  writing  only  as  referring  to  the  power  of  death. 
The  Roman  government  had  not  abolished  capital  pun- 
ishment, nor  was  Paul  writing  to  a  community  of  Qua- 
kers. He  was  writing  to  those  who  would  inevitably 
have  understood  him  to  reiterate  as  belonging  to  the 
magistracy  under  the  Christian  dispensation  that  power 
to  take  life,  with  which  society  was  invested  of  God 
under  the  Noachic  and  the  Jewish  dispensation. 

Let  this  argument  be  carried  one  step  farther  in  order 
to  test  it  in  Paul's  own  conduct,  and  it  becomes  perfectly 
decisive.  In  his  own  person,  at  the  judgment  bar,  Paul 
fully  recognizes  the  justice  and  solemn  authority  of  the 
penalty  of  death.  "  If  I  be  an  offender,  or  have  com- 
mitted anything  worthy  of  death,  I  refuse  not  to  die." 
Acts  xxv.  11.  Paul  supposes  that  there  are  crimes 
worthy  of  death,  and  that  a  human  government  may 
rightly  inflict  the  penalty  of  death  for  such  crimes ;  he 


ARGUMENT    TESTED.  249 


requires  a  legal  investigation  in  his  own  case,  and  if  by 
such  an  investigation,  he  be  found  to  have  done  anything 
which  deserves  that  penalty,  he  does  not  refuse  to  suffer 
it,  he  is  willing  to  die.  The  argument  thus  tested  in 
Paul's  own  experience,  is  perfect.  It  is  incontrovertible, 
that  so  far  from  there  being  any  abrogation  of  ordinance 
given  to  mankind  through  Noah,  either  in  the  letter,  or 
by  the  spirit  of  the  Christian  dispensation,  we  find,  in  the 
very  opening  of  that  dispensation,  a  new  and  distinct 
promulgation  of  the  same.  Nor  is  this  to  be  wondered 
at :  for  the  legislation  of  God  with  Noah  was  as  purely 
benevolent  as  the  precepts  of  our  Saviour's  sermon  on 
the  Mount. 

§  6,    SUSPICIOUS   NATURE    OF   ANY   ARGUMENT    WHICH    BEGINS    BY    DE- 
PRECIATING  THE    AUTHORITY    OF   GOD'S   WORD. 

As  to  the  light  which  this  ordinance  sheds  upon  the 
divine  government,  and  the  radiance  which  it  pours  over 
questions  of  the  highest  moment  in  human  affairs,  it  is, 
amidst  all  the  depravity,  darkness,  and  bewildering 
schemes  of  men,  like  a  sun  shot  into  chaos.  It  is  an 
orb  of  light.  The  attempts  to  destroy  it  are  just  as  if 
you  strove  to  pluck  the  planets  from  their  places.  Nor 
are  the  arguments  by  which  its  divine  obligation  is 
sought  to  be  avoided,  restricted,  or  explained  away,  any 
better  than  the  false  humanity  that  characterises  the  ef- 
fort. An  argument,  which  begins  with  a  depreciation 
of  the  authority,  or  the  excellence  of  any  part  of  the 
word  of  God,  is.  from  that  very  circumstance,  suspicious. 


250  CAPITAL    PUNISHMENT. 

It  would  be  better  to  yield  up  the  whole  benefit  of  an  ap- 
peal to  divine  truth  uncontradicted,  than  to  endeavour  to 
ward  it  off  by  cavils  against  its  authority,  or  sneers  upon 
its  barbarism.  They  who  speak  thus  either  of  the  Noa- 
chic  or  the  Jewish  economy,  speak  both  ignorantly  and 
presumptuously.  There  has  never  been  a  regulation 
under  God's  authority  which  was  barbarous  or  injudi- 
cious. It  was  ever  the  highest  wisdom ;  but  divine  wis- 
dom itself  is  not  an  abstraction,  but  in  its  exercise  re- 
gards circumstances  :  and  therefore,  if  any  enactment 
be  manifestly  local,  the  question  we  have  to  ask  is  not, 
Was  such  an  ordinance  meant  for  us  1  but,  how  far  are 
our  own  circumstances  so  similar  to  those  of  the  men 
for  whom  it  was  intended,  as  to  make  it  applicable  to  us, 
wise  for  us  ?  The  remarks  of  a  great  philosopher  on 
the  Jewish  economy,  one  who  will  not  be  suspected  of 
religious  prejudice,  or  blindness,  are  worth  consideration. 
It  is  Sphlegel,  who  has  observed  on  this  subject,  that  "  in 
practical  life,  Reason  serves  as  the  divine  regulator,  in 
so  far  as  it  adheres  to  the  higher  order  of  God.  But 
when  it  refuses  to  do  this,  and  wishes  to  deduce  all  from 
itself,  and  its  own  individuality,  then  it  becomes  an  ego- 
tistical, over-refining,  selfish,  calculating,  degenerate 
reason,  the  inventress  of  all  the  arbitrary  systems  of 
science  and  morals,  dividing  and  splitting  everything 
into  sects  and  parties/"5  The  same  great  writer  has  ob- 
served of  the  whole  existence  of  the  Jewish  people,  that 
"  the  keystone  of  its  moral  life  projected  its  far  shad- 
ows into  futurity  ;"  he  might  have  observed  the  same 


IMAGE    OF    FUTURITY.  251 

of  the  ordinance  given  to  Noah,  which  indeed  is  the 
keystone  placed  by  divine  wisdom  in  the  magnificent 
arch  of  human  legislation  constructed  from  on  high. 
This,  too,  according  to  that  noble  expression,  projects  its 
far  shadows  into  futurity ;  it  is  a  prophetic  miniature  of 
the  key-stone  of  divine  justice  and  goodness  in  the  gov- 
ernment of  God  in  eternity.  You  may  see  here  an 
image  of  the  infinite,  in  the  finite,  even  as  you  may  see 
the  whole  cope  of  heaven  reflected  in  a  dew-drop. 

§  7.    THE    GREAT    SACREDNESS   AND    PROTECTION   OF  HUMAN    LIFE    PRO- 
DUCED   AMONGST   THE    HEBREWS   BY    THIS   STATUTE. 

I  have  now  proved  to  you  the  original,  comprehensive 
ordinance  unshackled,  unrestricted,  bold,  universal,  in 
an  authoritative  annunciation  as  simple,  clear,  conclusive, 
as  any  command  in  the  decalogue,  with  reasons  as  mani- 
fest, with  cogency  as  great.  I  then  prove  to  you  after- 
wards additional  particular  statutes  framed  manifestly 
under  the  authority  of  this  universal  statute,  in  the  legis- 
lation of  a  people  who  received  this  first  book  containing 
it  as  one  of  the  portions  of  the  Divine  law  ;  and  this 
particular  enactment  as  belonging  to  themselves,  as  one 
of  the  great  families  of  mankind  sprung  from  Noah ; — 
which  local  statutes,  though  restricted  to  the  Jews,  look 
back  to  the  great  original  statute  as  their  fountain,  and 
prove  incontrovertibly  that  thus  far  that  statute  had  never 
been  repealed.  I  show  these  statutes  to  you  couched  in 
such  terms,  accompanied  with  such  remarkable  declara- 
tions as  to  the  guilt  of  murder,  that  even  in  local  enact- 


252  CAPITAL  PUNISHMENT. 

merits  this  crime  has  been  manifestly  singled  out  and 
held  up  to  the  world  as  an  exception  to  all  others,  in 
admitting  no  reprieve  or  repeal  in  any  case  whatever 
from  its  assigned  penalty.  There  are  no  deeper  colours, 
in  which  the  pencil  of  inspiration  itself  is  ever  dipped. 

It  is  astonishing  to  mark  the  jealousy  of  the  Divine 
Being,  lest  the  sympathy  of  his  fallen  creatures  with 
sin,  and  their  mistaken  pity  for  the  murderer  instead  of 
the  murdered  victim,  should  turn  the  course  of  justice 
from  its  prescribed  channel.  Doubtless  the  Divine  Le- 
gislator had  observed  an  unwillingness  to  follow  his 
supreme  wisdom,  a  readiness  to  connive  at  crime  and 
clear  the  guilty,  a  readiness  on  the  part  of  witnesses  and 
of  judges  to  perjure  themselves,  a  sympathy  produced 
partly  by  family  influence,  partly  by  the  declamation  of 
demagogues,  partly  by  infidelity,  and  partly  by  the  plau- 
sible pretence  of  a  benevolence  superior  to  God's.  For 
a  season,  these  explicit  statutes  prevailed  to  check  these 
influences,  and  stay  the  crime  of  murder,  so  that,  under 
the  administration  of  the  Judges  it  was  so  uncommon, 
that  the  whole  nation  from  Dan  to  Beersheba  rose  up  in  a 
complicated  case,  to  punish  it.  A  noble  state  of  public 
opinion,  and  produced  entirely  by  the  salutary  power  of 
these  laws.  But  in  after  times  the  law  grew  again  to  be 
neglected,  and  this  remissness  in  its  execution  is  charged 
against  the  nation,  as  constituting  one  of  its  greatest  sins, 
this  carelessness  of  human  life,  and  this  permission  of 
bloodshed  without  avenging  it.  Your  hands  are  full  of 
blood,  says  the  prophet  Isaiah,  unavenged  blood,  and 


SACREDNESS    OF    LIFE.  253 

therefore  you  may  be  ever  so  religious  in  your  prayers, 
but  God  will  not  hear  them. 

It  is  described  as  one  of  the  characteristics  of  a  reli- 
gious man,  which  shall  dwell  on  high,  that  he  shutteth 
his  hands  from  holding  bribes,  and  stoppeth  his  ears 
from  hearing  blood ;  will  not,  for  one  moment,  listen  to 
anything,  but  the  execution  of  the  Divine  law  upon  the 
murderer.  All  this  is  remarkable.  And  all  these  in- 
stances are  proofs  of  the  admirable  character  of  the 
Jewish  code  :  in  no  nation  in  the  world,  while  it  was 
observed,  had  human  life  any  sacredness  or  protection 
compared  with  that  experienced  among  the  Hebrews. 
And  in  the  period  of  that  nation's  greatest  prosperity,  the 
feeling  of  such  sacredness,  and  the  sense  of  the  Divine 
law,  had  sunk  down  so  deep  into  the  soul  of  people  and 
king,  that  David,  about  to  depart  from  life,  could  not  rest, 
while  he  remembered  that  the  crime  of  murder  in  one 
of  his  own  captains  had  gone  unpunished.  He  was 
compelled  by  the  invisible  Spirit  of  Law  and  Justice, 
and  Humanity  too,  to  leave  it  as  his  dying  injunction  to 
Solomon,  that  the  blood  of  Amasa  and  Abner,  whom 
Joab  slew,  should  be  avenged  as  the  Divine  statute 
directed. 

§  8.    THIS   STATUTE    RE  PROMULGATED    AND    ESTABLISHED    IN    THE    NEW 
TESTAMENT. 

Passing  now  from  the  argument  among  the  Hebrews 
of  the  old  dispensation,  I  carry  ^ou  down  to  the  period 
of  the  great  re-enactment  and  publication  of  the  Divine 
23 


254  CAPITAL    PUNISHMENT. 

law  by  the  Saviour,  its  repromulgation  under  the  form 
of  love — which  quality  is  the  basis  of  all  Divine  legis- 
lation ;  for  the  restraint  and  punishment  of  vice  in  the 
vicious,  grows  out  of  love  to  the  virtuous  ;  and  1  prove 
o  you  that  at  that  time,  and  all  along,  before  and  after, 
there  were  cases  of  capital  punishment,  and  that  the 
authority  and  power  of  capital  punishment  is  held  un- 
diminished,  and  of  divine  origin  and  sanction.  I  prove 
to  you  that  in  the  time  of  the  apostles  this  power  is 
recognized  as  belonging  to  the  magistracy,  so  that  Paul 
apparently  almost  goes  out  of  his  way  to  reiterate  it,  and 
to  hold  it  up  as  the  highest  delegation  of  power  from  God 
to  man,  emanating  directly  from  the  Divine  Legislator. 
And  I  show  you,  that  so  far  from  any  appeal  being  taken 
from  this  law  to  the  law  of  Christ,  it  is  confirmed  by  the 
gospel ;  and  that,  so  far  as  our  blessed  Lord  remarked 
upon  the  Mosaic  institutions,  it  was  not  to  condemn  them, 
but  the  rapacity,  cruelty,  and  oppression  of  the  Jews 
abusing  them,  and  turning  their  spirit  of  justice  and  love 
into  malignity ;  not  to  repeal  a  single  one  of  them,  but  to 
regulate  their  application.  I  prove  to  you,  that  even  if 
our  Lord  had  stricken  out,  with  his  own  hand,  any  one 
of  them,  this  would  not  have  lessened  the  authority  of 
those  that  remained  ;  for  till  the  same  hand  should  blot 
them  all  away,  no  human  authority  should  dare  to  do  it. 
So  that,  as  long  as  there  cannot  be  found  the  slightest 
reference  by  our  Saviour  to  the  law  of  death  for  mur- 
der ;  except  it  may  be  where  he  declares  that  they  that 
take  the  sword  shall  perish  by  the  sword,  which  saying, 


LAW   OF    RETRIBUTION.  255 

so  far  as  it  goes,  is  a  reiteration  of  that  law  ;  even  if  he 
had  said  distinctly  as  to  the  law  of  retaliation  by  an  eye 
for  an  eye  and  a  tooth  for  a  tooth,  It  is  all  done  away  ; 
which  he  never  did  say,  but  simply  rebuked  the  spirit  of 
private  revenge  making  use  of  that  law  as  its  instrument 
or  for  its  concealment ;  this  would  not  have  the  least 
bearing  on  the  penal  statute  for  murder,  either  to  ques- 
tion, restrain,  limit,  or  repeal  it.  Even  supposing  one 
statute  of  the  Divine  Law  repealed  by  its  author,  who 
dare  take  this  example,  and  follow  in  the  repeal  of  an- 
other, without  a  direct  command  from  the  Deity  ?  This 
mode  of  reasoning  is  altogether  presumptuous  and  incor- 
rect. 

The  precepts  of  our  Saviour  are  sometimes  urged  as 
if  really  the  Spirit  of  God  and  the  Spirit  of  Christ  were 
contradictory.  When  the  Saviour  says,  Thou  shalt  love 
thine  enemies,  it  is  the  same  benevolence  which  speaks, 
The  murderer  shall  surely  be  put  to  death.  When  God 
says,  Resist  not  evil ;  Recompense  to  no  man  evil  for 
evil ;  Vengeance  is  mine,  I  will  repay,  saith  the  Lord  ; 
he  speaks  to  individuals  and  not  to  the  civil  government ; 
there  could  not  be  a  more  perfect  obedience  to  this  com- 
mand, than  when  the  avenging  of  the  blood  of  a  murder- 
ed man  is  put  into  the  hands  of  the  government,  and 
God'"s  own  penalty  is  executed.  This  is  God's  own  ven- 
geance ;  this  is  God  repaying,  and  not  man.  Your  ob- 
ligation to  love  your  enemies,  is  no  greater  than  your  ob- 
ligation to  love  the  community.  This  train  of  thought 
is  admirably  developed  by  Rev.  Mr.  Thompson  of 


CAPITAL    PUNISHMENT. 


New  York.  What  it  may  be  wrong  for  you  to  do  as  a 
private  individual,  it  may  be  wrong  for  you  not  to  do  as 
a  citizen  or  an  officer  of  justice.  You  have  no  right  to 
inflict  a  personal  injury  upon  your  neighbour,  but  to  love 
him,  though  he  be  your  enemy  ;  even  if  he  have  mur- 
dered your  own  brother,  you  are  bound  to  forgive  him 
the  injury  yourself;  but  you  are  also  bound  to  bring  him 
to  justice.  If  you  are  a  magistrate,  and  your  neighbour 
or  your  enemy  is  brought  before  you  charged  with  an  of- 
fence against  the  laws,  you  are  bound  to  inflict  an  injury 
upon  him,  by  the  penalty  of  law,  and  if  the  crime  be 
murder,  by  death.  If  your  dwelling  should  be  set  on 
fire  at  midnight,  and  one  of  your  children  murdered  by 
your  enemy,  the  Spirit  of  Christ  commands  you  to  for- 
give him  personally,  but  it  commands  you  also  not  to 
shield  him  from  the  penalty  of  the  law.  The  same 
Spirit  of  Christ  commands  you,  as  you  love  the  welfare 
of  the  community,  to  bring  this  murderer  to  justice,  to 
have  him  arrested  and  put  in  prison  to  receive  his  doom. 
You  yourself  would  be  an  enemy  to  the  community,  if 
you  connived  at  his  escape. 

§    9.    CONCURRENT     PRACTICE    AND    OPINION    OF    THE    WHOLE    ANCIENT 
WORLD. 

% 

I  have  dwelt  upon  the  existence  of  this  law  through 
the  whole  course  of  Jewish  legislation,  and  the  contin- 
ual reference  to  it  in  the  stream  of  Divine  revelation.  I 
cannot  dismiss  this  point  without  noticing  the  strong  cor- 


TESTIMONY    OK    ANTIQUITY.  257 

roboration  our  argument  receives  from  the  consentaneous 
legislation  of  the  world  from  the  time  of  Noah. 

We  have  the  unanimous  concurrence  and  practice  of 
the  whole  ancient  world  to  sustain  our  interpretation  of 
the  Noachic  ordinance.  We  have  in  the  stream  of 
Pagan  and  classical  literature,  a  continual  reflection  and 
memory  of  its  light.  "  Philosophers,  legislators,  poets," 
I  speak  in  the  words  of  one  of  our  distinguished  native 
scholars,  (Prof.  Taylor  Lewis),  "  all  speak  of  it  as  de- 
rived from  primeval  tradition,  and  as  coming  from  a 
source  transcending  the  memory  of  history.  It  is  the 
very  precept  which  Aristotle  produces,  and  with  a  stri- 
king resemblance  in  some  of  his  terms  to  the  language 
of  the  Bible,  as  an  example  of  what  he  styles  unwritten 
law,  noj;  peculiar  to  Athens,  or  Macedon,  or  Persia,  but 
coextensive  with  mankind,  and  found  among  all  nations, 
civilized  and  savage.  The  ancient  poets,  better  ex- 
pounders of  the  natural  sentiments  of  mankind  than  the 
philosophers,  ever  speak  of  it  as  a  law  having  something 
peculiarly  sacred  and  holy  about  it,  and  differing  in  this 
respect  from  all  other  statutes,  thereby  intimating  that 
special  Divine  origin  of  which  we  have  so  precise  an  ac- 
count in  the  Bible.77 

§  10.  TENOR  OF  THE  GRECIAN  POETS  ON  THIS  POINT,  AND  ILLUSTRA- 
TIONS •F  THE  JUDGMENT  OF  THE  HUMAN  MIND,  IN  THE  CASE  OP 
THE  INHABITANTS  OF  MELITA  WITH  PAUL. 

I  may  add  to  this,  that  the  voice  of  the  Grecian  poets 
especially   recognizes  the    proverb  that    "  Murder  will 
23* 


258  CAPITAL   PUNISHMENT. 

out ;"  and  is  an  echo  of  that  deep  utterance,  which  God 
himself  interpreted  of  inanimate  nature,  "  the  voice  of  thy 
brother's  blood  crieth  unto  me  from  the  ground"  You 
may  find  in  the  Greek  poets  a  constant  reverberation  of 
that  voice  which  in  the  book  of  Proverbs  comes  from 
heaven  :  "  A  man  that  doth  violence  to  the  blood  of  any 
person,  shall  flee  to  the  pit ;  let  no  man  stay  him.'7  It 
seems  to  be  a  law  of  the  human  mind,  in  the  natural, 
social  state,  to  sleep  not,  to  rest  not,  until  the  spirit  of  the 
murdered  victim  is  answered  in  this  appeal.  There  is 
an  instinct  for  the  punishment  of  murder  by  the  death 
of  the  murderer ;  Cain  himself  manifested  its  power 
and  its  terror  when  he  said,  "  Every  man  that  seeth  me 
will  slay  me."  The  inhabitants  of  Melita  manifested 
its  power  when  they  said,  in  the  very  spirit  of  a^.  chorus 
in  the  Greek  Tragedies,  and  of  the  word  of  God  itself, 
as  they  saw  the  viper  fastening  upon  Paul's  hand,  "  No 
doubt  this  man  is  a  murderer,  whom,  though  he  hath  es- 
caped the  sea,  yet  vengeance  sufFereth  not  to  live." 
The  word  here  means  not  so  much  vengeance,  as  the  in- 
visible, Divine  Avenger — the  ever-watchful  Deity  of 
Justice.  This  is  one  of  the  most  remarkable  expressions 
to  be  found  on  record,  of  the  sense  in  the  minds  of  the 
heathen,  of  the  existence  and  providence  of  such  a 
power.  I  may  add,  also,  that  this  is  an  equally  signal 
development  of  the  innate  idea  of  right,  as  applied  to 
punishment.  These  men  did  not  think  of  the  good  of 
society  or  the  necessity  of  punishment  for  its  protection  ; 
but  they  said,  This  man  is  a  murderei';  he  ought  to 


INNATE   FEELING.  259 


have  been  put  to  death  ;  justice  required  it,  and  now 
justice  hath  overtaken  him.  In  this  they  simply  uttered 
the  innate  feeling  of  right — the  inward  sentence  of  the 
soul,  to  which  every  soul  responds.  It  is  right  that  the 
murderer  should  die.  There  was  nothing  vindictive — 
nothing  revengeful  in  this  feeling.  It  is  the  constitution 
of  our  nature  to  make  us  feel  that  crime  demands  pun- 
ishment ;  it  is  not  merely  a  suggestion  of  expediency — 
it  is  an  instinct  of  our  being. 

To  the  argument  from  the  scriptures  I  shall  now  add 
one  more  text,  because  standing  at  the  close  of  the  Bible, 
it  completes  the  golden  chain  of  argument,  running  like 
a  furrow  of  light  through  the  whole  Bible  on  this  subject, 
from  Genesis  to  the  Apocalypse.  It  is  this,  from  the 
Revelation  of  St.  John,  xiii.  10 :  "  He  that  killeth  with 
the  sword  must  be  killed  with  the  sword."  It  is  power- 
ful for  two  reasons.  First  our  marginal  annotators, 
without  any  point  to  gain  or  any  special  pleading,  have 
referred  us  for  a  scriptural  comment  on  the  meaning  of 
this  passage,  to  the  ordinance  in  Genesis.  Second,  the 
impersonal  Greek  verb  Set,  which  is  here  used,  carries 
with  it  the  sense  of  necessity,  propriety,  fitness,  moral 
obligation.  He  that  killeth  with  the  sword,  must,  ought, 
shall  be  killed  by  the  sword.  This  also  is  very  like  that 
proverb  which  I  have  quoted  :  "  He  that  doth  violence 
to  the  blood  of  any  person  shall  flee  to  the  pit :  let  no 
man  stay  him." 


260  CAPITAL    PUNISHMENT. 


§  11.    CONSIDERATION  OF  THE    SLANDER   THROWN    UPON    THIS    STATUTE 
AS   IF   IT   WERE   VINDICTIVE — BENEVOLENCE    OF   THIS    STATUTE. 

This  brings  us  to  the  consideration  of  the  slander 
thrown  upon  this  statute  as  if  it  were  malevolent,  re- 
vengeful, vindictive.  The  sophistry  of  our  opponents  is 
often  mainly  deployed  upon  this  point.  You  are  pleased 
to  call  it  vindictive,  and  in  this  way  seek  to  array  against 
the  punishment  of  malice,  that  feeling  of  indignation, 
which  rises  in  a  just  mind  against  malice  itself.  Now  it 
is  perfectly  clear,  that  in  this  legislation  there  is  nothing 
malicious,  nothing  vindictive.  It  proceeds  from  love, 
from  benevolence,  from  the  absolute,  humane  necessity 
of  preventing  crime,  and  guarding  the  world  against  it. 
Of  all  processes  of  law,  that  in  which  the  murderer  is 
condemned  to  death  is  the  most  solemn,  deliberate,  com- 
passionate.  The  law  never  shows  its  majestic  combina- 
tion of  immutable  sternness,  with  the  constant  play  of 
human  sympathy  more  clearly.  The  benefit  of  every 
doubt  is  allowed  to  the  prisoner  ;  the  court,  judge,  and 
jury  all  wish  that  he  may  be  proved  innocent ;  the  ver- 
dict of  guilty  is  pronounced  with  hesitation  and  sorrow  ; 
the  judge  declares  the  sentence  with  reluctant  humanity  ; 
the  whole  community,  pressed  on  by  the  invisible,  sub- 
lime power  of  that  element,  whose  agency  supports  the 
universe,  do  nevertheless  shrink  back  in  horror  and  pity 
from  the  awful  conclusion.  All  this  proves  at  once  the 
absence  of  every  vindictive  element ;  but  demonstrates 
at  the  same  time,  the  protective  and  salutary  terrors  of 


NOT    VINDICTIVE.  261 

the  punishment.  The  impression  on  the  community  is 
a  most  deep,  salutary,  beneficial  one.  The  image  of 
divine  law  and  divine  retribution  is  reflected  as  in  a 
mirror  to  the  inward  prophetical  vision  of  the  soul. 
The  thought  of  vindictiveness  is  the  last  that  would 
enter  the  mind  ;  the  thought  of  the  dreadfulness  of  the 
crime  of  murder,  and  the  awfulness,  immutability,  and 
certainty  of  justice,  in  its  punishment,  is  roused.  If  any 
just  penal  inflictions  could  suggest  the  idea  of  vindictive- 
ness,  there  are  other  modes  of  punishment,  which  would 
do  it  much  more  readily.  Punishment  by  death  is  no 
more  vindictive  in  its  nature  than  imprisonment,  than 
fine,  than  banishment.  But  the  word  itself  is  a  sophism, 
It  does  not  belong  to  justice,  which  is  vindicating,  but  not 
vindictive.  When  you  apply  it,  you  are  guilty  of  a  de- 
liberate misstatement ;  you  appeal  to  prejudice  by  an 
argument  which  you  must  know  to  be  false. 

It  is  not  only  not  vindictive,  but  it  is  humane  in  the 
highest  degree.  That  is  true  humanity,  which  looks 
to  the  highest  good  of  the  greatest  number.  In  this 
view,  all  penalties  of  the  divine  law,  and  all  just  penal- 
ties of  human  law,  are  the  offspring  of  benevolence. 
Your  frowning  prisons,  in  which  living  men  are  im- 
mured in  a  death  to  society,  to  love,  to  domestic  tender- 
ness, to  nature,  to  the  sweet  changes  of  the  seasons,  to 
all  that  can  render  life  desirable,  on  your  reasoning  are 
inhuman  and  vindictive  in  the  last  degree.  The  element 
of  malice,  if  you  charge  it  against  the  penalty  of  death, 
is  more  marked  and  manifest  by  far,  in  this  penalty  of  a 


262  CAPITAL  PUNISHMENT. 

living  death  in  perpetual  imprisonment.  When  one  of 
the  trusted  ministers  of  Louis  XL  had  betrayed  his 
master,  that  tyrant  kept  him  fourteen  years  in  an  iron  cage 
in  one  of  his  grim  castles.  There  was  more  vindictive 
malice  in  that  act  than  in  twenty  executions.  In  all  forms 
the  just  penalties  of  law  are  not  vindictive,  but  benevolent. 

§    12.    MISTAKE    CONCERNING   THE   NATURE    OF   BENEVOLENCE. 

There  is  no  mistake  more  general,  than  that  concern- 
ing the  nature  of  benevolence,  the  monstrous  mistake  of 
supposing  that  benevolence  cannot  punish.  Nor  is  there 
any  statute  of  the  Divine  law  better  adapted  to  correct 
that  mistake,  than  this  statute  of  capital  punishment. 
The  highest  proof  of  malevolence  would  be  not  to  pun- 
ish, but  to  let  sin  prevail.  In  this  view,  the  evil  which  in 
this  world  follows  the  commission  of  crime,  the  evil  which 
is  attendant  on  sin  in  all  its  forms,  is  a  necessary  part  of 
the  demonstration  of  the  Divine  goodness.  This  being 
a  world  of  sin,  if  it  were  not  also  a  world  of  misery, 
you  could  not  prove  that  God  is  ,a  benevolent  God.  A 
being  not  benevolent  would  let  mankind  go  on  in  their 
sins  without  any  check.  The  miseries  of  mankind  do, 
in  this  view,  prove  the  goodness  of  God  ;  and  instead  of 
needing  an  explanation  or  apology,  as  if  they  constituted 
a  difficulty  in  God's  government,  they  are  absolutely 
necessary  to  demonstrate  that  we  are  under  his  govern- 
ment. They  prove  that  a  being  of  infinite  goodness  is 
at  the  head  of  aifairs.  Nor  is  there  anything  that  proves 


RETRIBUTIVE    JUSTICE.  263 

this  more  truly,  than  the  ordinance  that  whosoever  shed- 
deth  man's  blood,  shall  himself  die. 

The  retribution  in  this  statute  is  an  image  of  the 
divine  retributive  justice  in  eternity.  Into  this  one 
statute  the  principles  of  the  Divine  government  are 
concentrated  ;  it  is  a  prophetic  image ;  and  those  who 
disregard  the  statute,  and  deny  its  principles,  must, 
according  to  the  warning  even  of  a  heathen  philoso- 
pher, look  that  they  be  prepared  for  a  future  develop- 
ment, which  may  very  much  astonish  them.  It  was 
Plato,  and  not  a  Calvinistic  theologian,  who  said  that  the 
laws  in  the  eternal  world,  the  sisters  of  the  laws  in  this 
world,  will  give  their  enemies  a  fearful  reception  in 
eternity. 

§    13.    CONCLUSION    OF    THE    SCRIPTURE    ARGUMENT. — NATURE    OF   THB 
ATTEMPT   TO   ABOLISH   THIS   STATUTE. 

Here  I  must  for  the  present  rest  the  argument,  but  I 
leave  it  on  an  immovable  foundation.  The  argument 
from  expediency  against  the  abolition  of  Capital  punish- 
ment is  equally  strong,  the  divine  will  and  wisdom  be- 
ing the  highest  possible  expediency  ;  it  will  lead  me 
over  a  path  of  the  deepest  interest,  both  in  the  statement 
of  the  argument  itself,  and  in  answering  the  objections 
brought  against  the  statute  as  it  stands,  where  we  hop* 
it  ever  will  stand,  in  our  codes  of  law,  and  is  happily 
and  humanely  practised,  where  we  hope  it  ever  will  be 
practised,  in  our  Courts  of  Justice. 

The  attempt  to  abolish  it  js  the  array  of  the  opinion 


264  CAPITAL    PUNISHMENT. 

of  a  few  persons,  at  a  particular  juncture  of  time, 
against  the  dictate  of  divine  wisdom,  and  the  wisdom 
and  experience  of  all  nations,  in  all  states  of  society,  in 
all  ages  of  the  world.  It  is  a  hardy  enterprise,  this 
opposition,  as  it  has  been  admirably  stated,  of  the  vox 
populi  of  the  present  moment  against  the  vox  Dei  of  the 
Scriptures,  and  the  vox  liumanitatis  of  the  whole  human 
race.  But  the  opponents  of  this  law  have  not  even  the 
vox  populi  to  sustain  them ;  it  is  a  mistake  if  they  as- 
sert this  to  be  the  popular  opinion ;  the  appearance  of  it 
is  only  the  assertion  of  it  by  themselves  with  the  unsub- 
stantial echo,  but  not  the  voice.  I  rejoice  in  feeling 
sure  that  this  is  the  case,  that  the  popular  feeling,  and 
the  benevolent  feeling,  are  in  favour  of  this  law.  I  be- 
lieve in  general,  and  we  have  the  history  of  the  French 
revolution  to  support  the  opinion,  that  the  very  same 
men  who  sometimes  clamour  the  loudest  for  the  abolition 
of  Capital  punishment,  on  account  of  the  vaunted 
humanity  and  enlightened  public  opinion  of  the  day, 
would  be  the  persons,  if  a  tempest  of  public  opinion 
happened  to  sweep  in  favour  of  Lynch-law,  who  would 
drag  a  man  even  from  the  safety  of  the  prison,  and 
hang  him  on  the  nearest  lamp-post. 

Public  opinion  may  be  mistaken  at  a  particular  junc- 
ture— often  is.  And  we  wish  it  to  be  considered  wheth- 
er any  one  generation  of  human  society  is  capable  of 
deciding,  by  its  own  experience  even,  the  fitness  or  the 
unfitness  of  a  law,  which  God  has  seen  best  to  promul- 
gate for  the  human  race.  Before  all  experience,  we 


STATUTE    FOR    ALL   GENERATIONS.  265 

should  judge  that  a  legislation  intended  for  six  thousand 
years  would  very  probably  pass  over  intervals  of  time 
and  phases  of  society,  in  which  the  particular  applica- 
tion of  its  wisdom  might  not  seem  so  manifest — might 
possibly  be  deemed  questionable.  But  should  we  say 
that  the  doubt  or  the  question  engendered  by  particular 
circumstances,  or  by  one  people,  could  justify  the  race 
in  altering  or  repealing  such  legislation  ?  Should  a  law 
intended  for  a  thousand  years,  be  repealed  because  the 
experience  of  one  of  those  years  seems  to  run  not  ac- 
cordant with  the  line  traced  by  the  reason  of  that  law  ? 
Proportioned  to  the  importance  and  unchangeable  wisdom 
of  this  law,  is  the  universality  of  its  publication.  There 
is  no  nation  so  barbarous,  no  period  of  the  world  so 
rude,  degraded,  ignorant,  that  has  not  known  it,  that  has 
not  possessed  it,  however  simple  and  informal  may  have 
been  the  elements  of  legislation.  There  is  no  nation 
that  has  risen  to  refinement  and  vigour  of  mind  enough, 
to  embalm  in  an  undying  literature,  the  voice,  the  opin- 
ion, the  experience,  of  morality  and  prudence,  that  has 
not  spontaneously  echoed  and  sanctioned  this  statute,  as 
if  it  were  as  much  the  dictate  of  man's  being  as  of 

o 

God's  wisdom.  It  stands  at  the  opening  of  an  early  and 
unpolluted  world,  before  one  drop  of  blood,  save  that  of 
a  hallowed  sacrifice,  had  bedewed  the  earth,  yet  fresh 
and  moist  from  the  cleansing  deluge.  Before  there  was 
room  for  a  single  emotion  but  of  gratitude  and  love,  it 
was  revealed  as  one  grand  element,  not  of  revenge,  but 
of  blessing,  in  the  Divine  covenant  with  the  human  race. 
24 


266  CAPITAL    PUNISHMENT. 

The  hand  that  drew  the  rainbow  over  the  sky,  in  sign 
"  that  storms  prepare  to  part,"  wrote  this  statute  in  lines 
no  more  to  be  effaced  till  the  destruction  of  all  things, 
than  the  colours  of  the  rainbow  c^  be  blotted  from  the 
sky,  while  lasts  the  constitution  of  this  physical  universe. 
And  as  in  every  conflict  of  the  elements  that  might 
fill  men's  souls  with  terror  of  another  deluge,  this  bow 
of  mercy,  this  vision  of  delight,  should  span  the  clouds 
with  the  glittering  arch,  so  in  every  storm  of  human 
passion,  that  rises  to  the  violence  of  death,  this  statute, 
as  a  bow  of  promise,  is  God's  assurance  to  the  world, 
against  the  anarchy  of  murder.  There  probably  never 
was  an  instance  of  murder  in  the  Christian  world,  in 
which  men  did  not  think  of  it ;  nor  ever  an  instance  in 
the  heathen  world,  in  which  the  voice  of  conscience  did 
not  echo  its  assurance.  As  it  stands  in  the  Scriptures, 
it  is  one  of  the  planets  in  the  firmament  of  revealed 
truth ;  to  strike  it  out  from  its  place,  and  from  its  author, 
ity  for  the  guidance  of  human  legislation,  would  be  like 
striking  the  constellation  of  the  Pleiades,  or  the  bright 
North  Star,  from  heaven.  A  great  writer  has  said, 
with  most  profound  wisdom,  that  it  is  only  by  celestial 
observations  that  terrestrial  charts  can  be  accurately 
constructed ;  and  so,  it  is  only  by  the  divine  light  that 
comes  down  from  these  divine  statutes,  that  human  legis- 
lation can  be  perfected  ;  it  is  only  by  comparison  with 
these  statutes,  that  the  mistakes  of  human  prejudice  or 
ignorance  can  be  detected  and  adjusted.  Sure  we  are, 
that  on  the  ocean  of  human  passion,  neither  states  nor 


GUIDANCE    OF    LAW.  267 

individuals  can  be  safe,  but  by  charts,  mapped  and 
marked  beneath  the  light  of  these  enactments.  It  is 
light,  like  that  of  the  planets,  has  travelled  unaltered 
and  unabated  across  the  storms  and  changes  of  thou- 
sands of  years ;  and  still  it  shines,  and  still  will  it  shine 
to  the  end  of  the  world ;  for  as  sure  as  we  are  that  a 
God  of  mercy  gave  this  comprehensive  element  of  law 
to  Noah,  so  sure  we  are  that  he  will  never  suffer  it  to  be 
blotted  from  human  statute  books,  by  the  presumptuous 
tampering  of  a  single  generation. 


ARGUMENT   OP   THE   SECOND  EVENING. 


§  1.  REASON  OF  THE  STATUTE  PERPETUAL. 

AN  objection  is  sometimes  brought  against  the  binding 
and  perpetual  obligation  of  the  Noachic  statute,  that  if 
you  take  it  as  we  contend,  you  must  also  take  the  pro- 
hibition not  to  eat  blood.  This  is  worth  noticing.  I 
might  contend  that  this  is  simply  a  prohibition  against  a 
species  of  cannibalism,  for  it  is  not  the  blood  that  is  for- 
bidden solely,  but  the  flesh  with  the  blood.  But  I  apply 
to  this  prohibition  the  same  reasoning  as  to  the  injunc- 
tion. It  is  of  force  while  the  reason  for  it  remains.  It 
was  given,  in  reference  to  the  sacrifices  which  were  to 
constitute  the  standing  type  and  prediction  of  the  great 
sacrifice  of  the  Messiah  for  the  sins  of  the  world.  To 
make  that  rite  more  sacred,  to  maintain  the  idea  of  the 
solemnity  and  sacredness  of  religious  sacrifices,  in  which 
so  deep  and  holy  a  life  and  meaning  was  in  the  blood  of 
the  victim,  this  prohibition  was  laid  down  against  eating 
the  blood  with  the  flesh.  As  long  as  the  rite  of  sacri- 
fices lasted,  the  force  of  this  prohibition  stood,  because 
the  reason  for  it  remained ;  but  when  sacrifices  and 


PENALTY    MARKING   GUILT.  269 

types  were  abolished,  the  particular  binding  force  of  this 
prohibition  fell  with  it,  the  reason  for  it  no  longer  exist- 
ing. But  this  does  not  affect  in  the  least  degree  that 
great  injunction  of  the  punishment  of  death  for  murder. 
If  the  reason  for  that  command  could  be  shown  to  be  no 
longer  existing,  then  the  injunction  itself  would  fall,  but 
not  otherwise.  Lex  stat,  dum  ratio  manet.  The  reason 
remains.  We  are  made  in  God's  image ;  every  genera- 
tion to  the  end  of  the  world  will  be ;  therefore,  on  every 
generation  this  law  is  binding. 

§  2.  ENORMITY  OF  THE  GUILT  OF  MURDER,  AND  NECESSITY  OF  A 
PENALTY  THAT  SHALL  MAKE  IT  PARAMOUNT  IN  ITS  RETRIBUTION, 
AS  IT  STANDS  IN  ITS  GUILT. 

There  is  no  computing  the  enormity  of  the  guilt  of 
murder.  It  stands  alone,  and  unapproached  by  any 
other  crime  in  its  atrocity.  Its  intrinsic  enormity,  and 
its  dreadful  consequences  are  such  that  we  need  not 
wonder  at  the  language  in  which  it  is  described  and  de- 
nounced by  Jehovah,  nor  at  the  penalty  of  death  affixed 
to  it.  It  is  right,  it  is  benevolent,  it  is  necessary,  that 
such  a  crime  should  invariably,  without  any  exception  in 
any  case  whatever,  be  punished  with  the  extremest  pen- 
alty of  which  heaven  has  annexed  the  authority  to  hu- 
man law.  There  ought  to  be  such  a  penalty,  high,  aw- 
ful, distinctive,  to  mark  this  crime  in  its  retribution,  as  it 
stands  in  its  guilt,  paramount  to  every  other.  The  con- 
science of  society  should  be  educated  in  the  view  of  such 
a  penalty  ;  and  if  it  were  not,  or  when  it  is  not,  poor 
24* 


270  CAPITAL   PUNISHMENT. 

and  cheap  indeed  is  the  estimate  placed  upon  the  sacred- 
ness  of  human  life. 

The  object  of  all  punishment  is  benevolent,  it  is  the 
well-being  of  the  community.  It  is  to  prevent  crime  by 
supporting  law.  The  penalty  of  the  law  must  be  an 
evil,  which  the  man  intending  crime  will  balance  against 
the  good  he  proposes  to  himself  by  the  crime.  He  must 
fear  the  evil  more  than  he  desires  the  good.  Do  you 
say  that  men  commit  crimes  in  passion,  and  that  there  is 
seldom  this  balancing  of  motives  and  considerations  ?  I 
answer,  this  may  possibly  be  true  in  regard  to  all  minor 
penalties,  and  this  is  one  strong  argument  for  having  in 
the  case  of  murder  so  terrific,  strong,  overbearing  a  pen- 
alty, that  it  shall  break  down  all  other  considerations, 
that  it  may  stem  the  torrent  of  passion,  that  the  criminal 
may  hear  a  voice  amidst  the  roar  of  the  tempest  of  pas- 
sion commanding  him  to  refrain. 

§    3.    STATEMENT    OF   THE    QUESTION    OF    EXPEDIENCY. 

Now,  it  being  granted  that  the  murderer  deserves  to 
die,  and  that  society  have  the  right  in  some  cases  to  in- 
flict the  punishment  of  death,  the  question  of  expediency 
before  us  is  simply  whether  punishment  by  death  oper- 
ates more  effectually  to  prevent  the  crime  of  murder 
than  any  other  penalty.  Now,  then,  who  are  they  from 
whom  we  have  to  fear  murder  ?  Any  man  may  become 
a  murderer  with  sufficient  temptation  ;  but  in  general  it 
is  men  already  hardened  by  crime,  from  whom  the  crime 
€  murder  is  to  be  feared ;  it  is  men  urged  by  want,  out- 


TERRORS  OF  THE  PENALTY.          271 

casts  from  society,  beings  with  whom  life  is  already  so 
deprived  of  comfort,  of  respectability,  of  happiness,  that 
a  jail  with  its  food  and  clothing  would  be  almost  a  relief 
instead  of  a  punishment,  while  death  would  be  the  most 
terrific  of  penalties.  It  is  manifest  that  there  is  almost 
no  good  motive  to  restrain  such  persons  from  crime. 
There  is  nothing  but  fear  that  will  do  it.  But  the  fear 
of  the  prison  is  almost  changed  into  a  relief  at  the 
thought  of  its  shelter.  With  the  penalty  of  death  it  is 
very  different.  Here  you  appeal  to  a  terror  as  far  great- 
er than  all  others,  as  the  crime  itself  of  murder  is  great- 
er than  all  others.  "  In  all  secondary  punishments,"  re- 
marks a  legal  writer,  "it  is  assumed  that  the  convict  is 
well  fed,  well  clothed,  well  lodged,  and  well  attended  to. 
He  may  have  no  luxuries  and  few  comforts,  but  he  has 
entire  security  against  starvation  or  want,  perfect  protec- 
tion against  the  weather,  and  certainty  of  medical  assist- 
ance in  case  of  sickness.  To  the  unthinking  multitude 
the  secrets  of  the  prison-house  can  never  be  fully  re- 
vealed, and  there  will  always  be  some  room  for  doubt 
and  hope  as  to  the  lot  of  the  convict.  The  executioner 
alone  inflicts  a  punishment  of  which  the  sufferings  can 
never  be  called  in  question." 

I  may  add  to  this,  that  you  may  put  what  guards  you 
will  about  your  plan  of  imprisonment,  to  make  it  perpet- 
ual, there  will  always  be  hope  of  escape.  Criminals 
sentenced  to  imprisonment  for  life,  have  ordinarily,  on 
an  average — if  you  take  this  State  for  an  example — 
spent  in  prison  about  six  years !  But  even  if  you  made 


CAPITAL    PUNISHMENT. 


the  date  absolutely  immutable,  there  will  always  be 
murderers,  who,  with  the  ingenuity  of  Baron  Trenck, 
could  almost  eat  their  way  through  stone  walls,  as  easily 
as  they  could  eat  the  heart  out  of  their  own  humanity. 
Or  if  not,  a  villain  who  will  commit  a  murder  that 
brings  him  into  prison,  would  not  hesitate  a  moment  to 
commit  one  that  shall  take  him  out. 

§  4.  POWER  OF  THE  FEAR  OF  DEATH  AS  A  PUNISHMENT  -  ILLUSTRATED 
IN  THE  CASE  OF  COLT. 

Indeed,  there  is  nothing  that  can  possibly  check  the 
spirit  of  murder,  but  the  fear  of  death.  That  was  all 
that  Cain  feared  ;  he  did  not  say,  people  will  put  me  in 
prison,  but,  they  will  put  me  to  death  ;  and  how  many 
other  murders  he  may  have  committed  when  released 
from  that  fear,  the  sacred  writer  does  not  tell  us.  Nor 
is  it  anything  but  this,  that  the  whole  progeny  of  mur- 
derers, from  Cain  downwards,  ever  fear,  nor  anything 
but  this  fear  that  ever  will  restrain  them.  They  fear 
the  same  tremendous  evil  which  they  inflict  on  others, 
but  nothing  else. 

And  you  may  range  the  whole  Newgate  Calendar, 
with  the  experience  of  all  gentlemen  elopers  with  the 
estates  of  heiresses,  who,  like  Gilbert  Wakefield,  have 
got  into  it  ;  and  you  may  tell  as  much  as  you  please  of 
the  insensibility  of  obdurate  villains  even  in  the  face  of 
death  ;  but  such  testimony  weighs  no  more  against  the 
power  of  the  fear  of  death  in  all  mankind,  than  the  tes- 
timony of  a  perjurer  and  a  murderer  would  weigh 


TERRORS  OF  THE  PENALTY.         273 

against  an  honest  man's  testimony  in  a  court  of  justice. 
But  if  it  did  weigh,  what  does  it  prove  ?  Why,  that, 
there  are  such  monstrous  villains,  so  steeled  and  invete- 
rate in  wickedness,  that  death  itself  ha's  no  terror  for 
them ;  but  certainly  if  they  do  not  fear  death,  they  fear 
imprisonment  still  less ;  and  if  they  would  murder  even 
with  the  fear  of  death  before  them,  much  more  will  they 
murder  when  that  fear  is  taken  away.  Besides,  if  be- 
cause a  villain  says  that  he  neither  fears  your  law  nor 
its  deadly  penalty,  you  bring  that  as  a  reason  for  abol- 
ishing the  penalty,  suppose  another  knot  of  villains  tell 
you  that  they  do  not  even  fear  God,  nor  his  terrific  pen- 
alty ;  the  same  reason  would  be  just  as  good  for  striking 
that  penalty  from  the  government  of  the  universe.  Or 
if  another  gang  tell  you  that  they  care  not  a  fig  for  your 
perpetual  imprisonment,  then  by  parity  of  reasoning, 
you  ought  to  abolish  perpetual  imprisonment.  The  rea- 
soning from  these  drivellings  of  depravity  in  malefactors 
is  to  the  last  degree  wretched  and  absurd.  Hard  push- 
ed indeed  must  he  be  in  argument,  who  can  consent  to 
dive  down  into  the  polluted  heart  of  a  Newgate  criminal, 
in  order  to  fish  up,  from  the  confession  of  his  monstrous, 
unnatural  obduracy,  an  argument  in  that  very  obduracy 
against  the  fit  punishment  of  his  own  crimes. 

I  think  there  is  a  testimony  from  criminals  sometimes 
elicited  as  to  the  real  fear  of  death,  which  it  may  be 
well  to  set  over  against  all  this.  It  is  that  rather  than 
die  by  the  penalty  of  the  law,  they  sometimes  kill  them, 
selves.  But  who  ever  heard  of  a  man  killing  himself 


274  CAPITAL    PUNISHMENT. 

to  avoid  imprisonment  ?  What  malefactor,  whom  the 
officers  of  justice  were  carrying  to  prison,  if  the  popu- 
lace should  try  to  kill  hi^  would  not  cry  lustily  for 
help  ?  You  cannot  believe  that  the  wretched  Colt  would 
have  killed  himself,  if  his  punishment  had  been  merely 
imprisonment  instead  of  death.  Besides,  what  language 
was  it  which  was  spoken  in  that  hurrying  and  anxiety 
to  have  his  sentence  commuted,  that  intense  effort  on  the 
part  of  counsel,  friends  and  criminal  for  this  purpose. 
Well  then,  a  punishment  which  the  criminal  fears  more 
than  death,  must  be  of  all  others  most  powerful  to  re- 
strain from  crime. 

But  you  object  that  it  leads  to  suicide.  We  answer, 
that  it  places  suicide  itself  as  a  terrific  consequence  of 
crime,  a  terrific  form  of  vengeance  uprising  behind  the 
shade  of  the  murdered  man  to  the  murderer's  own  view. 
It  places  the  crime  of  murder  on  one  side — a  public  ex- 
ecution or  suicide  on  the  other,  with  no  possible  alterna- 
tive. Now  the  whole  system  of  criminal  jurisprudence 
goes  upon  the  supposition  of  a  future  state  of  retribution, 
the  supposition  that  men  believe  it,  and  that  no  man  will 
flee  voluntarily  from  this  to  that.  It  does  not  contem- 
plate, and  it  ought  not,  a  state  of  society,  in  which  men's 
fear  of  a  future  judgment  is  taken  away.  It  contem- 
plates that  judgment;  and  its  highest,  last,  most  awful 
resort,  when  men  commit  the  highest,  last,  most  awful 
crime,  a  crime  from  which  all  lesser  penalties  are  una- 
vailing to  restrain  them,  is  to  hand  the  criminal  over  to 
that  dread  tribunal,  which  alone  can  deal  with  him.  It 


CERTAINTY  OF  THE  PENALTY.          275 

seems  to  me  that  in  this  point  we  have  a  most  solemn 
connecting  link  between  God's  jurisprudence  and  our 
own.  God's  high  court  has  a  passage  from  our  inferior 
one ;  and  in  the  case  of  this  crime,  it  is  as  if  God  had 
said,  Here  you  can.  do  nothing  but  to  hand  the  criminal 
over  to  his  last  judge ;  he  has  passed  that  limit,  in  which 
it  was  possible  to  permit  men  to  sin  under  the  jurispru- 
dence of  probation. 

§    5.    OBJECTION    CONSIDERED,    OF    THE    UNCERTAINTY    OF   THE    PENAL- 
TY.  SALUTARY    POWER    OF  THE    PENALTY    OF    DEATH    FOR    MURDFR, 

AS    CERTAIN. 

I  am  not  now  arguing  for  the  restraining  power  of  an 
uncertain  penalty,  but  of  a  penalty,  which,  restricted  to 
the  crime  of  murder,  shall  be  made  absolutely  certain. 
One  of  your  objections  against  punishment  by  death  is 
the  uncertainty  of  its  execution,  and  that  this  uncer- 
tainty renders  the  penalty  itself  ineffectual.  Very  true; 
and  this  very  uncertainty,  and  the  consequent  weakening 
of  the  power  of  law  and  of  its  protective  energy  to  the 
community,  is  in  part  owing  to  men's  injudicious  efforts 
against  this  penalty.  They  act  some  of  them  from  a 
warm  heart,  no  doubt,  but  not  from  a  wise  and  large 
philanthropy.  This  uncertainty,  with  all  this  whimsical 
scrupulosity  of  jurors,  is  not  a  little  produced  by  that 
mawkish  sensibility,  which  weeps  over  the  fate  of  the 
murderer,  but  forgets  the  murdered  victim,  and  neglects 
the  protection  of  the  innocent. 

Now  to  test  this  fear  of  death,  and  its  power  for  pre- 


276  L^'-TAL   PUNISHMENT. 

venting  crime,  put  aside  these  uncertainties,  from  what- 
ever  cause  produced.  Make  the  penalty  certain.  Sup- 
pose  the  intended  criminal  to  know  that  the  public  eye 
is  on  him,  that  Justice  will  not  sleep  till  he  be  detected, 
that  such  is  the  virtuous  state  of  feeing  in  the  commu- 
nity, such  the  regard  to  God's  law,  such  the  sense  en- 
tertained of  the  sacredness  of  human  life,  and  of  the 
enormity  of  the  crime  of  murder,  that  no  effort  or  ex- 
pense will  be  spared  to  bring  him. to  justice,  and  that  if 
brought  to  justice,  he  will  inevitably  be  executed  ;  that 
no  jury  will  entertain  any  false  scruples,  that  no  false 
sensibility  will  be  exercised  towards  the  murderer,  that 
no  deputations  from  the  bar  will  be  hurrying  to  and  fro 
for  his  pardon,  but  that  there  will  be  such  a  humane  re- 
gard for  the  murdered  victim  and  the  interests  of  soci- 
ety, as  will  surely  avenge  his  death — I  say,  suppose 
all  this,  which  is  what  we  contend  for,  and  then  the 
murderer  sees  at  once  that  to  take  the  life  of  another 
man  is  just  to  take  his  own.  He  might  just  as  well 
commit  suicide  as  murder.  He  plunges  the  dagger  into 
his  own  bosom,  when  he  strikes  it  into  that  of  his  neigh- 
bour. And  how  often  do  you  suppose  he  would  thus 
strike  it  if  this  were  the  case  ?  Why,  it  would  restrain 
the  angriest,  most  passionate  malignity.  The  truth  is, 
it  would  be  the  very  perfection  of  jurisprudence,  if  you 
could  make  murder  a  suicidal  act :  the  crime  of  murder 
would  well-nigh  cease  from  existence.  Put  your  statute 
on  the  right  basis,  and  you  do  make  it  such.  Throw 
away  your  absurd  reasonings,  your  cavillings  against 


PKEVENTION   OF   CRIME.  277 

the  laws  of  God  and  man,  and  make  the  execution  of 
the  penalty  of  death  for  murder  absolutely  certain,  and 
its  restraining  power  against  crime  is  immeasurable. 
This  is  the  reformation  we  need ;  not  the  abrogation  of 
this  penalty,  but  the  putting  it  where  God  puts  it  for  all 
mankind,  as  the  penalty  alone  for  murder. 

§  6.  THE  PROTECTIVE  POWER  OF  THIS  PENALTY  FOR  SOCIETY. NE- 
CESSITY OF  HAVING  THE  GREATNESS  OF  THE  GUILT  OF  MURDER 
MARKED  TO  THE  CONSCIENCE  OF  THE  MURDERER,  BY  THE  PEN- 
ALTY. 

I  have  proved  the  restraining  influence  of  this  pen- 
alty in  preventing  crime.  Next  as  to  its  protective  in- 
fluence for  society.  It  is  manifest  that  this  is  just  pro- 
portioned to  its  restraining  influence  over  the  criminal. 
Whatever  prevents  crime,  protects  society.  Now,  your 
abrogating  course  is  so  far  from  giving  society  protec- 
tion, that  it  is  almost  an  invitation  to  murder.  Let  us 
trace  the  course  of  things.  Nemo  repente  fuit  turpissi- 
mus.  No  man  becomes  a  murderer  at  once.  A  man 
begins  his  career  with  small  steps.  From  his  father's 
house  forth  into  the  wilderness  of  crime  he  goes  timidly. 
But  the  tenderness  of  his  conscience  is  gradually  de- 
stroyed, and  one  crime  and  another  is  committed  it  may 
be  with  impunity.  The  penalty  of  discovery  he  has 
often  faced,  and  become  accustomed  to  look  at  it  calmly 
and  to  balance  consequences.  Disgrace,  fine,  imprison- 
ment, all  these  are  evils  that  may  be  borne.  If  the 
worst  ensues,  still  life  remains,  and  there  is  hope  in  iri- 

25 


278  CAPITAL    PUNISHMENT. 

genuity,  and  even  in  guilt.  But  at  length  his  steps  in 
crime  have  brought  him  to  the  verge  of  murder.  His 
victim  is  before  him.  Perhaps  it  is  a  rich,  gray-haired 
old  man,  sleeping  calmly  in  his  bed  at  midnight.  The 
dagger  is  lifted.  Now,  between  this  crime  about  to  be 
perpetrated,  and  every  lower  crime,  there  is  a  vastness 
of  separation  which  the  mind  cannot  fathom.  It  is  in- 
vested with  horrors  ;  it  puts  whole  coils  of  serpents  in 
the  conscience ;  it  has  a  redness  and  a  blaze  of  guilt, 
which,  if  any  symbol  could  mark  them,  ought  to  be  set 
up  in  open  day  to  the  universe,  ought  to  be  made  to  flash 
like  a  sword  of  fire  upon  the  soul.  But  your  hardened 
man  of  guilt  does  not  see  this.  And  what  have  you 
done  to  remind  him  of  it  ?  What  separating  wall  have 
you  raised  to  keep  his  soul  from  the  damnation  of  this 
guilt,  of  which  God  himself  hath  said  that  no  murderer 
hath  eternal  life  abiding  in  him  ?  He  has  come  to  the 
verge  of  murder.  What  is  there  now  to  stay  him  ? 
What  writing  on  the  wall,  what  external  sign,  what  ad- 
ditional terror  to  rouse  up  his  conscience,  and  show  him 
the  tremendous  depths  of  the  gulf  he  is  about  passing  ? 
What  is  there  to  show  him  that  the  step  he  is  taking  is 
not  one  of  his  previous  degrees  of  crime,  but  a  convul- 
sive, awful  sweep  of  his  being  into  a  depth  of  guilt,  com- 
pared with  which  the  whole  previous  iniquity  of  his  life 
is  as  nothing  ?  You  have  put  no  mark  here.  You 
have  torn  down  the  barrier,  which  God  himself  had 
erected  in  mercy  to  the  criminal  as  well  as  to  the  inno- 
cent. You  have  taken  away  the  landmark,  the  warning 


DISTINCTIVE   MARK    FOR   MURDER.  279 

which  God  himself  has  put  up  for  all  mankind,  and 
which  assuredly  marks  a  mightiness  of  guilt  and  of  ter- 
ror in  the  next  step  of  evil,  which  nothing  but  the  wide 
difference  between  the  penalty  of  death  and  every  lower 
penalty  could  mark.  You  must  have  such  a  mark  •  the 
soul  of  humanity  calls  upon  you  for  it ;  the  blood  of 
every  murdered  victim  crieth  from  the  ground ;  you  are 
guilty  of  a  monstrous  iniquity  if  you  blot  it  out ;  for 
there  is  no  comparison  between  the  madness,  the  ruthless- 
ness,  the  monstrousness  of  murder  and  every  other 
crime.  In  mercy  to  your  fellow-creatures,  you  are  call- 
ed on  to  distinguish  it  from  every  other,  by  a  penalty 
which,  like  that  statute  of  God — that  statute  of  mercy  at 
the  world's  opening,  stamped  the  conviction  of  its  in- 
iquity into  the  soul  of  mankind. 

I  have  taken  the  case  of  a  man  whose  successive  steps 
in  crime  have  brought  him  to  the  verge  of  murder,  as  a 
new  and  separate  guilt.  But  suppose  him  to  be  brought 
to  the  verge  of  murder  while  in  the  commission  of  some 
other  crime,  and  in  order  to  conceal  it,  then  the  argu- 
ment becomes  vastly  more  powerful.  While  the  Tempt- 
er is  whispering,  If  I  take  this  man's  life,  I  may  conceal 
my  crime,  conscience  and  the  law  should  answer,  You 
die  for  it.  The  ministers  of  justice  will  be  infinitely 
more  keen  in  your  pursuit,  the  eyes  of  the  whole  com- 
munity will  be  flashing  for  you,  mere  suspicion  will  de- 
tect you,  your  own  conscience  will  lead  you  to  discovery  ; 
and  death,  temporal  and  eternal,  is  before  you.  The 
motive  for  the  concealment  of  crime  is  so  powerful  an 


280  CAPITAL   PUNISHMENT. 

incentive  to  murder  in  such  a  case,  that  we  are  bound  to 
guard  against  it.  But  to  abolish  this  penalty  is  directly 
to  throw  the  temptation  of  murder  in  the  way  of  a  crim- 
inal, who,  perhaps,  otherwise  would  not  have  dared  to 
think  of  it,  even  for  the  concealment  of  crime.  To 
abolish  this  penalty  is  to  make  murderers  out  of  common 
villains.  They  will  murder  to  conceal  their  other 
crimes,  as  soon  as  you  reduce  the  penalty  for  murder  to 
the  same  level  with  that  for  others.  The  penalty  for 
murder  being  no  greater,  they  are  no  worse  off,  even  if 
discovered.  Without  the  murder,  perhaps  discovery  is 
inevitable,  and  imprisonment  must  ensue.  With  the 
murder,  even  if  discovered,  the  penalty  can  be  no  more 
than  imprisonment.  But  by  the  murder  the  whole 
crime  may  be  concealed,  and  the  murderer  may  come 
off  completely  clear.  It  is  manifest  in  such  a  case  that 
nothing  but  this  penalty  can  protect  society. 

§  7.  INJUSTICE    AND    INHUMANITY    OF  THE  ABOLITION  OF   THE   PENALT/*" 
OF   DEATH    FOR    MURDER. 

I  have  shown  that  this  penalty  is  necessary  for  the 
restraint  of  crime  and  the  protection  of  society.  I  shall 
now  show  that  the  proposed  abolition  of  it  is  unjust  and 
inhuman  in  the  last  degree.  It  is  a  policy,  the  cruelty 
and  barbarism  of  which  is  susceptible  of  a  perfect  de- 
monstration. It  introduces  the  element  of  inhumanity 
into  the  very  education  of  society.  Your  jurisprudence 
is  a  most  important  part  of  your  education  for  the  com- 
munity. It  trains  the  common  conscience.  But  in  the 


PROTECTION    OF    SOCIETY.  281 

abolition  of  this  penalty,  you  occasion  a  general  degra- 
dation of  the  moral  sense ;  you  teach  that  there  is  no 
difference  between  the  guilt  of  murder,  and  that  of  mere 
forgery  and  stealing.  You  lessen  men's  estimate  of  the 
sacredness  of  human  life,  and  you  are  unconsciously 
training  men's  passions  for  the  cruelty  of  murder.  You 
degrade  the  whole  subject  and  science  of  morals ;  for 
this  is  at  the  foundation  of  it,  involving  all  its  principles. 
You  give  place  and  full  swing  to  duelling,  bloody  riots, 
and  private  revenge.  What  you  refuse  as  a  government 
to  do  for  the  family  and  friends  of  the  murdered  man, 
and  for  the  interests  of  the  community,  you  may  be 
sure  the  malignity  of  private  revenge  will  not  fail  to  ac- 
complish. You  take  away  the  strong  security  of  your 
police,  and  you  expose  the  lives  of  your  jail-keepers  to 
imminent  hazard.  A  most  faithful  and  vigilant  police 
officer,  since  the  abolition  of  capital  punishment  has 
been  spoken  of  as  a  probable  thing,  has  had  his  own  life 
threatened,  and  the  lives  of  others  in  his  presence,  and 
when  he  has  told  the  villain  that  his  own  life  must  pay 
the  forfeit  of  such  a  crime,  the  answer  has  been, 
"  There  is  no  fear  of  that  in  these  days."  The  police 
officer  added,  that  if  the  law  should  deprive  him  of  this 
protection,  he  should  be  afraid  to  go  to  haunts  of  crime, 
which  in  the  support  of  the  law,  he  now  visits.  Whi 
indeed,  what  public  servant,  either  in  this  city  or  in 
London,  would  dare  plunge  into  the  recesses  of  crime  to 
ferret  out  the  villain,  if  the  strong  fear  of  this  penalty 
did  not  go  before  him  ? 

25* 


282  CAPITAL  PUNISHMENT. 


§    8.    OBJECTION     CONSIDERED    OF    THE     DANGER    OF    MISTAKING    THB 
INNOCENT   FOR  THE   GUILTY. 

Your  zeal  for  the  abolition  of  this  penalty  may  be  the 
zeal  of  love,  but  it  is  the  logic  and  philanthropy  of  cru- 
elty and  murder.  It  is  a  most  inhuman  neglect  of  the 
interests  of  the  innocent,  to  save  the  forfeited  lives  of 
abandoned  villains,  the  example  of  whose  security  will 
sharpen  the  appetite  of  all  other  murderers,  and  who 
will  certainly  themselves  murder  again,  if  they  can  get 
out  of  prison.  It  is  a  philanthropy  that  pays  no  regard 
whatever  to  the  unquestioned  fact  that  thousands  of 
murders  have  been  prevented  by  this  penalty,  thousands 
of  innocent  men  saved,  and  innocent  families  preserved 
from  the  stab  of  the  assassin,  but  with  a  morbid,  diseas- 
ed, pseudo-benevolence  it  rakes  the  records  of  crime  for 
those  mistakes  to  which  human  imperfection  necessarily 
exposes  human  legislation,  and  if  in  one  hundred  cases 
false  executions  can  be  made  out  in  two  thousand  years, 
it  regards  the  lives  of  a  thousand  innocent  persons  saved 
from  the  murderer  as  nothing  in  the  comparison.  Ten 
innocent  persons  killed  by  mistake  in  two  hundred 
years,  are  more  than  a  balance  against  the  lives  of  a 
hundred  innocent  persons  who  would  have  been  killed 
by  the  murderer,  had  it  not  been  for  this  penalty.  The 
truth  is,  your  statistics  and  calculations  of  profit  and  loss 
on  human  life,  are,  as  has  been  admirably  said,  the 
arithmetic  of  Judas  Iscariot,  the  calculations  of  the  price 
of  innocent  blood. 


FALSE    SENTENCES   CONSIDERED.  283 

Now  that  I  have  met  this  objection  of  the  danger  of 
mistaking  the  innocent  for  the  guilty,  it  is  best  to 
demolish  it  more  fully.  There  is  the  same  danger 
against  all  punishments.  False  imprisonments  occur, 
and  are  not  discovered  till  many  years  have  elapsed. 
Is  that  an  argument  against  imprisonment  for  crime  ? 
Suppose  you  could  be  assured  that  there  had  been  one 
hundred  cases  of  false  imprisonment  for  life  in  the 
course  of  English  jurisprudence,  would  you  deem  that 
a  justifiable  ground  for  the  abolition  of  imprisonment 
for  life  ?  But  let  us  grapple  a  little  closer  with  these 
cases.  They  are  given,  most  of  them,  in  a  former  edi- 
tion of  Phillip's  Treatise  on  Evidence,  and  they  consti- 
tute, it  has  been  said,  the  stock  in  trade  of  the  prisoner's 
counsel  in  all  murder  trials.  "  Whoever  will  examine 
these  cases,  will  find  that  in  almost  every  instance,  ex- 
cept those  in  which  the  corpus  delicti  was  not  found,  and 
it  appeared  afterwards  that  no  murder  had  been  com- 
mitted, the  real  culprit  has  taken  away  the  life  of  the 
innocent  prisoner  by  perjury,  or,  which  amounts  to  the 
same  thing,  by  arraying  and  directing  a  set  of  circum- 
stances so  as  to  implicate  him.  The  amount  of  it  is, 
that  the  murderer,  in  addition  to  the  murder  already 
committed,  has  made  use  of  an  institution  of  justice, 
instead  of  the  assassin's  knife,  to  perpetrate  another. 
There  is,  in  such  cases,  an  additional  murder  commit- 
ted, not  by  the  law,  nor  by  its  ministers,  nor  yet  by  the 
State,  which  gave  them  their  authority,  but  by  the 
wretch,  who  has  brought  upon  himself  the  guilt  of  a 


284  CAPITAX   PUNISHMENT. 

double  murder  to  prevent  the  detection  of  one.  There 
may  therefore  occur  now  and  then,  with  extreme  rarity, 
an  instance  in  which  a  murderer  will  seize  upon  this 
law  to  commit  another  murder,  for  the  purpose  of 
screening  the  one  already  committed."  But  if  on  this 
account,  you  abolish  the  penalty  of  death  to  avoid  these 
cases  of  murder  in  the  second  instance,  you  at  once  in- 
crease the  number  of  murders  in  the  first  instance. 
You  relinquish  the  reality  of  justice  to  snatch  at  its 
shadow.  This  objection  is  not  good  against  the  penalty, 
though  it  is  of  use  in  enjoining  the  utmost  carefulness  in 
criminal  trials  ;  but  still  we  must  keep  the  law,  because 
we  are  certain  that  the  abrogation  of  the  penalty  would 
lead  to  tenfold  more  murders,  than  can  possibly  be  com- 
mitted through  the  abuse  of  it.  The  example  of  our 
Saviour  is  in  point  in  a  case  analogous.  The  Jews  in 
his  day  abused  the  law  and  its  penalties  for  their  pur- 
poses of  private  revenge.  Did  he  on  this  account  abro- 
gate the  law,  or  take  away  the  penalties  ?  Not  at  all, 
but  confirmed  them  both,  while  he  forbade  the  abuse  of 
them. 

§  9.  DEMONSTRATION    CONTINUED    OF   THE    INHUMANITY    AND    INJUSTICE 
OF   THE    ABOLITION    OF    CAPITAL   PUNISHMENT. 

Having  disposed  of  this  objection,  I  proceed  now  to 
prove  more  fully  the  injustice  and  inhumanity  -'of  the 
effort  for  the  abolition  of  this  penalty.  You  are  unjust, 
if  you  do  not  give  to  society  the  same  means  of  self-de- 
fence against  assassins,  which  they  relinquish  for  the 


PROTECTIVE   POWER    OF    THE   PENALTY.  285 

protection  of  the  government.  Men  do  not  wear  arms — 
but  why  ?  Because  of  the  solemn  assurance  that  the 
government  will  protect  life  in  the  same  way,  if  need 
be,  in  which  weapons  of  death  protect  it ; — because  of 
the  knowledge  that  the  criminal  is  aware,  if  he  takes 
life,  that  his  own  will  be  taken.  Now  to  take  away  this 
penalty  is  in  fact  to  take  away  from  the  community  the 
means  of  self-defence.  It  is  to  make  cowards  of  the  in- 
nocent, but  brave  men  of  the  guilty  ;  for  what  man,  for 
example,  will  dare  defend  his  property,  if  a  villain  sets 
upon  it,  when  the  very  defence  may  make  the  villain 
murder  him,  you  having  taken  away  from  the  villain 
himself  all  fear  of  death,  no  matter  what  crime  he  com- 
mits. If  a  man  breaks  into  your  house  at  midnight, 
with  the  knowledge  that  the  punishment  for  murder  is 
death,  though  that  for  housebreaking  is  not,  you  might 
be  ready  to  confront  him,  and  defend  your  property ; 
but  if  you  take  away  this  penalty,  you  paralyse  your 
own  arm,  and  you  nerve  that  of  the  house-breaker  with 
tenfold  desperation,  since  he  may  finish  his  villainy  with 
success  if  he  murders  you ;  and  if  he  be  caught,  the  pun- 
ishment for  murder,  at  all  events,  is  no  greater  than  that 
for  housebreaking,  and  if  he  does  not  murder  you  when 
you  have  confronted  him,  he  is  in  danger  of  discovery 
at  any  rate.  You  are  therefore  rendered  defenceless  in 
an  attack  upon  your  property  by  the  security  of  your 
adversary's  life ;  or  if  at  all  events  you  do  attempt  to 
defend  your  property,  and  discover  or  drive  away  the 
villain,  you  are  almost  sure  to  be  murdered,  ff  he  can 


288  CAPITAL   PUNISHMENT. 

murder  you,  for  his  life  is  safe,  while  the  taking  of 
yours  is  perhaps  necessary  to  his  success.  He  bears  a 
charmed  life,  the  consciousness  of  which  unnerves  you, 
but  nerves  him.  Just  so,  if  your  person  be  assaulted, 
and  you  resist,  your  very  defence  is  likely  to  procure 
your  murder,  for  you  are  the  helpless  one,  your  assail- 
ant has  all  the  advantage ;  the  assassin  cannot  be  killed, 
he  is  secure  by  law ;  but  if  he  kills  you,  he  may  escape 
completely.  To  abolish  this  penalty  would  therefore  be 
gross  injustice  and  inhumanity  both  to  the  innocent  who 
are  murdered,  and  to  the  innocent  living.  It  is  secu- 
ring the  murderer  against  death,  but  exposing  the  com- 
munity to  death  by  the  hand  of  any  villain,  who,  know- 
ing that  his  own  life  is  protected  by  statute,  chooses  to 
kill.  It  is,  in  fact,  a  premium  on  murder,  as  the  safest 
of  crimes.  If  you  commit  any  lower  crime,  you  may 
be  punished  for  it  too  much.  If  you  commit  this  crime, 
you  are  sure  of  a  punishment  less  than  the  evil  you  in- 
flict upon  others.  The  glaring  injustice  and  inhuman- 
ity of  such  an  arrangement  is  perfectly  obvious.  -) 

Now  to  fasten  this  argument  with  incontrovertible 
power,  I  shall  refer  you  to  a  case,  which  though  it  is  on 
record,  I  have  received  from  a  near  relative  of  the 
monster  concerned.  The  creature  in  his  passion  held 
an  axe  over  his  wife's  head,  and  told  her  that  nothing 
but  the  law  saved  her  life.  "  I  would  kill  you  in  a  mo- 
ment," said  he,  "  if  I  did  not  know  that  I  would  have  to 
swing  for  it."  I  appeal  to  the  good  sense  and  humanity 
of  our  audience,  is  not  that  a  benevolent  statute,  which 


STATISTICAL   ARGUMENT.  287 

extends  over  that  lonely  and  wretched  mother  the  only 
protection  for  herself  and  children  1  And  is  not  that  a 
most  inhuman  effort  which  seeks  to  take  away  from  be- 
fore that  brutal  husband  the  fear  of  death,  which,  as  he 
himself  says,  is  all  that  now  restrains  him  ?  Which  is 
the  spirit  of  Christ  1  the  spirit  that  vindicates  the  law, 
and  protects  the  community,  or  the  spirit  that  takes 
away  at  once  the  dreaded  penalty  of  the  law,  and  the 
protection  of  the  innocent  ?  Which  is  the  benevolent 
effort  ?  that  which  throws  its  shield  over  the  murderer's 
life,  but  gives  up  the  unprotected  victim  to  his  malice, 
or  that  which  binds  and  holds  back  the  arm  of  the  mur- 
derer, by  making  his  own  death  the  certain  consequence 
of  his  intended  crime  ? 

§  10.  THE  STATISTICAL  ARGUMENT — ITS  WEAKNESS  AND   ITS   SOPHISTRY 

We  come  next  to  the  statistical  argument  of  my  oppo- 
nent. And  I  have  to  say  at  the  outset  that  it  is  of  such 
a  nature  that  you  cannot  trust  it.  The  argument  from 
statistics,  so  far  as  it  is  gathered  from  all  offences  below 
the  crime  of  murder,  does  not  bear  upon  the  question  of 
capital  punishment  for  murder  at  all ;  but  if  it  did,  your 
induction  is  so  narrow,  so  many  causes  are  unnoticed, 
and  the  phases  and  influences  of  society  are  so  change- 
able, that  the  results  of  your  figures  in  a  question  of 
morals  are  likely  to  be  utterly  fallacious.  It  is  often 
said  that  figures  cannot  lie,  but  you  may  marshal  them 
in  such  a  way,  as  to  make  them  tell  a  falsehood  in  one 
direction,  while  they  speak  the  truth  in  another. 


CAPITAL  PUNISHMENT, 


I— Nor  can  there  be  anything  more  palpably  false,  and 
yet  very  plausible,  than  the  mode  sometimes  adopted 
in  arraying  these  statistics.  Here  is  a  country,  for  ex- 
ample, in  which  the  penal  code  annexes  death  to  several 
crimes,  but  in  which,  for  a  number  of  years,  from  va- 
rious causes,  crime  has  diminished  ;  of  course  capital 
punishments  have  diminished  also.  The  murders  have 
not  diminished  because  capital  punishments  have  dimin- 
ished, but  the  capital  punishments  have  diminished  be- 
cause the  murders  have  diminished.  Now  your  indus- 
trious statistic  gatherers  take  these  facts.  They  put  the 
diminuticm  of  the  capital  punishments  first,  and  the 
diminution  of  the  murders  as  the  consequence.  In  one 
column  you  see  a  decreasing  ratio  of  capital  punish- 
ments, in  the  opposite  a  decreasing  ratio  of  murders. 
Ergo,  the  diminution  of  capital  punishments  has  dimin- 
ished the  murders !  This  is  not  exactly,  according  to 
the  vulgar  but  pithy  saying,  the  cart  before  the  horse, 
but  it  is  rather  the  horse  behind  the  cart.  And  I  think 
I  need  not  labour  to  expose  either  the  absurdity  of  such 
statistics,  or  of  the  conclusions  drawn  from  them,  -y^ 

When  I  hear  men  reason  on  the  amelioration  of  a 
penal  code,  and  then  ascribe  to  this  one  cause  the  whole 
diminution  of  crime  in  society,  it  seems  to  me  much  as 
if  Dr.  Brandreth  should  state  how  many  million  boxes 
of  his  pills  society  have  taken  in  the  last  half  dozen 
years,  and  then  having  shown  a  diminution  of  diseases 
in  that  period,  attribute  the  whole  improvement  in  the 
health  of  mankind  to  his  pills.  The  truth  is,  that  this 


DECREASE    OF    CRIME.  289 

same  diminution  of  crimes  would  have  been  produced 
by  other  existing  causes,  which  undoubtedly  are  at  the 
foundation  of  it.  The  decrease  of  intemperance,  the 
influence  of  Sabbath  schools,  the  prevalence  of  a  better 
education,  an  increased  attendance  on  the  preaching  of 
the  gospel,  are  sufficient  to  account  for  improvements  in 
society,  which  you  trace  directly  to  a  change  in  the 
penal  code ;  but  if  not,  what  a  manifest  absurdity  it  is 
to  set  up  the  experience  of  half  a  dozen  years,  in  a 
State,  which  on  the  map  of  Europe  you  may  cover  with 
a  sixpence,  the  experience  for  example  of  Belgium,  only 
since  1830,  and  even  that  experience  most  doubtful  in 
itself,  and  most  imperfectly  known,  against  the  practice, 
reason,  belief,  and  experience  of  all  mankind,  in  all 
states  of  society,  in  all  ages  of  the  world.  If  I  chose 
to  reason  in  this  way,  I  could  show  you  statistics  in  the 
recent  experience  of  England,  to  offset  the  experience 
of  Belgium.  For  example,  it  is  well  known,  from  valu- 
able tables  constructed  by  Rev.  Mr.  Redgrave,  of  the 
Home  Office,  and  annually  presented  to  Parliament, 
that  since  the  removal  of  the  penalty  of  death  from  two 
hundred  offences  in  1837,  there  has  been  a  very  consid- 
erable increase  of  those  offences,  an  increase  of  no  less 
than  thirty-eight  per  cent.  What  shall  we  make  of 
this  ?  Shall  we  say  that  it  proves  that  the  penal  code 
of  England  ought  not  to  have  been  ameliorated  ?  This 
would  be  the  logic  of  my  opponent,  but  I  say  no.  The 
facts  are  not  broad  enough  to  justify  the  conclusion. 
There  must  be  a  much  longer  experiment,  a  much 
26 


290  CAPITAL   PUNISHMENT. 

wider  and  more  careful  induction,  and  after  all,  even  if 
those  offences  should  be  found  still  to  increase,  that 
would  not  justify  the  applying  to  them  again  the  penalty 
of  death. 

§11.   CAUSE   OF   THE    PREJUDICE   AGAINST   THIS  PENALTY. — REAL  NA- 
TURE   OF  THE   STATISTICAL  ARGUMENT. 

Now  with  regard  to  the  crime  of  murder,  the  case  is 
wholly  different.  It  ought  to  stand  apart  in  its  penalty 
from  all  other  crimes.  And  it  is  the  annexing  of  the  pen- 
alty of  death  to  so  many  other  crimes  that  has  made  the 
whole  difficulty.  Death  has  been  taken  from  the  hand 
of  the  Divine  Legislator,  from  the  place  he  assigned  to  it 
as  a  penalty,  and  most  wantonly,  most  barbarously,  most 
indiscriminately  applied  to  minor  offences,  in  such  wise, 
that  the  mind  is  filled  with  horror  at  the  sanguinary  and 
oppressive  nature  of  such  codes.  Hence  a  prejudice 
against  the  infliction  of  this  penalty  in  any  case.  Hence 
has  it  proceeded  that  it  has  become  a  mere  threat,  in 
many  cases  not  executed.  Hence  the  unwillingness  of 
juries  to  convict.  Hence  too  the  penalty  of  death  has 
lost  its  preventive  power  against  crime,  even  the  crime 
of  murder ;  nay,  being  applied  to  minor  offences,  it  fol- 
lows naturally  that  murder  itself  would  be  committed  to 
conceal  them.  Now  here  is  the  secret  of  the  apparent 
weight  of  the  statistical  argument,  which  in  reality 
bears  not  in  the  least  degree  against  the  punishment  of 
death  for  murder,  but  only  in  favour  of  restricting  that 
penalty  to  the  crime  of  murder.  Nothing  can  be  more 


CONCEALMENT    OF   CRIME.  291 

idle  than  to  array  before  us  statistics  in  regard  to  minor 
crimes,  taken  from  countries  where  in  the  penal  code 
there  has  been  a  great  abuse  of  this  penalty  of  death. 
It  has  nothing  to  do  with  our  argument.  The  penalty 
of  death,  you  say,  being  abolished,  crime  has  decreased. 
What  does  this  mean  ?  Is  it  a  new  principle  in  human 
nature  developed,  whereby  men  will  sin  the  more,  the 
more  they  have  to  suffer  for  it  ?  Not  at  all.  The  solu- 
tion of  the  riddle  is  just  this.  When  the  penalty  of 
death  was  common  for  minor  offences,  men  committed 
murder  in  the  hope  to  conceal  their  common  crimes. 
Now  the  penalty  of  death  being  taken  away  from  such 
minor  offences,  such  murders  for  the  concealment  of 
those  offences  cease,  unless  you  take  away  the  penalty 
of  death  from  murder  also.  This  is  the  true  account 
of  the  matter.  Now  if,  falsely  reasoning  from  this 
amelioration,  you  carry  your  repeal  of  the  penalty  of 
death  even  to  the  crime  of  murder,  you  destroy  all  the 
good  you  have  effected,  and  bring  back  the  whole  evil 
where  it  was  before,  nay,  much  worse ;  that  is,  inas- 
much as  you  annex  to  murder  no  more  dreadful  conse- 
quences than  to  other  crimes,  a  man  will  now  commit 
murder  to  conceal  his  other  crimes,  just  as  before  he 
felt  compelled  to  do  it  for  such  concealment,  because 
those  crimes  themselves  were  punishable  with  death. 

§    12.    ABSURDITY    DETECTED    AND    ILLUSTRATED. 

The  truth,  then,  is  this ;  the  improper  application  of 
the  penalty  of  death  increases  crime,  but  this  forms  no 


292  CAPITAL   PUNISHMENT. 

reason  for  its  abrogation  as  the  penalty  for  murder.  I 
think  I  can  illustrate  the  absurdity  of  the  statistical 
argument  by  which  you  would  force  us  to  such  abroga- 
tion, in  a  striking  manner,  from  the  science  of  medicine. 
Quinine,  in  medicine,  is  a  grand  remedy  for  fever ;  it  is 
a  specific,  but  it  needs  to  be  judiciously  and  skilfully 
applied.  Suppose,  now,  that  a  set  of  quacks  should  use 
it  injudiciously  in  the  case  of  fever,  and  indiscriminately 
for  almost  all  other  diseases,  whether  of  the  heart,  liver, 
or  lungs,  and  that  in  consequence  diseases  should  be 
multiplied  instead  of  diminished  by  this  medicine. 
Now  gather  your  statistics  of  disease  in  such  circum- 
stances, and  a  strong  argument  for  the  abolition  of  qui- 
nine from  the  medical  practice  might  be  made  out  based 
upon  them.  But  suppose  again  that  the  indiscriminate 
use  of  quinine  should  begin  to  be  diminished,  and  in 
consequence  it  should  be  shown  that  diseases  had 
diminished  also  ;  and  the  cause  of  such  diminution  being 
referred  to  the  discontinuance  of  quinine,  suppose  you 
should  be  told  that  it  is  manifest  that  this  remedy  ought 
to  be  renounced  not  only  in  other  diseases,  but  in  fevers 
also.  This  would  be  an  exact  parallel  to  the  statistical 
argument  for  the  abolition  of  capital  punishment. 
Would  you  accept  such  an  argument  ?  No,  you  would 
retain  your  quinine,  but  regulate  its  application.  And 
so,  if  you  are  humane  and  wise,  you  will  retain  your 
salutary  ordinance  of  death  as  a  penalty  for  murder, 
but  regulate  its  application.  You  will  not  suffer  the 
abuse  of  a  good  thing  to  destroy  its  use.  In  almost  all 


CASES   IN   RUSSIA   AND   TUSCANY.  293 

reformations  this  has  been  the  error  of  mankind.  They 
have  not  distinguished  between  uses  and  abuses.  At- 
tacking an  evil  which  was  mingled  with  good,  they  have 
swept  away  the  evil  indeed,  but  the  good  along  with  it. 

§    13.    RUSSIA,   TUSCANY,    AND   BELGIUM. 

You  bring  forward  the  case  of  Russia ;  but  unfortu-  . 
nately  for  the  argument,  you  bring  forward  no  facts  to 
sustain  your  statement.  It  is  plainly  denied,  that  for 
the  time  you  assert  there  have  been  no  capital  punish- 
ments inflicted  in  Russia.  It  is  perfectly  well  known, 
that  under  the  reign  of  the  Empress  Elizabeth,  so  far 
from  performing  her  pledge,  many  executions  occurred ; 
and  under  her  order  the  dreadful  punishment  of  the 
knout  was  inflicted  on  one  of  the  most  accomplished 
ladies  of  her  court.  And  as  to  Catherine,  she  commen- 
ced her  own  reign  with  the  murder  of  her  husband  and 
nephew,  and  reserved  to  herself  ever  the  privilege  of 
putting  to  death  whom  she  pleased  on  the  accusation  of 
state  crimes,  and  as  a  matter  of  state  policy.  A  singu- 
lar sort  of  abolition  of  capital  punishment,  truly  !  It  is 
more  than  80  years  since,  with  this  pretended  clemency, 
Catherine  began  her  reign.  I  find  it  distinctly  denied 
that  since  that  period  there  have  been  but  few  execu- 
tions. Where  are  your  statistical  tables  of  the  sentences 
passed  and  executed  throughout  all  the  fifty  provinces 
of  the  vast  territory  of  this  despotism  ?  It  is  said  by 
travellers,  that  the  code  of  Catherine  has  been  long 
since  disused.  And  who  does  not  know  the  terrible 
26* 


294  CAPITAL   PUNISHMENT. 

punishment  of  the  knout,  accompanied  sometimes  with 
the  cutting  out  of  the  tongue,  a  punishment,  which  is 
often  death,  and  which,  at  a  signal  of  command,  can  be 
carried  into  death  at  a  blow,  and  is  sometimes  thus  ad- 
ministered, so  that  there  is  in  it  all  the  terror,  with  more 
than  the  cruelty  of  death,  with  the  pretence  and  reputa- 
tion of  mildness.  Humane  constitution  of  things  ! 
Have  so  many  persons  died  under  the  infliction  of  the 
knout  ?  Oh,  this  was  merely  an  unfortunate  circum- 
stance in  administering  the  punishment ;  but  the  code  is 
a  very  mild  one ;  it  abolishes  punishment  by  death  ! 

It  does  not  abolish  punishment  by  death.  It  simply 
takes  that  punishment  away  from  the  judges  and  the 
courts,  through  whom  the  law  inflicts  it  in  a  free  coun- 
try, and  puts  it  in  the  exclusive  power  and  keeping  of 
the  monarch,  to  execute  when  and  how  he  will.  It 
simply  makes  a  more  perfect  despotism.  There  is  no 
trial  by  jury  in  Russia,  and  this  taking  away  the  power 
of  death  from  the  courts,  to  keep  it  solely  at  the  discre- 
tion of  the  king,  is  only  a  mode  of  making  him  more 
awful  to  his  subjects,  while  at  the  same  time  he  gets  the 
reputation  of  humanity.  You  might  about  as  well  say 
that  in  the  despotism  of  Egypt,  capital  punishments  are 
abolished,  because  nobody  but  Mohammed  AH  has  the 
liberty  of  cutting  off  men's  heads.  The  argument  from 
this  case  fails  in  every  point. 

Then  as  to  Tuscany.  The  experiment,  it  is  sufficient 
to  say,  proved  so  unsatisfactory,  that  the  government  re- 
stored the  penalty  of  death  for  the  restraint  of  crime, 


TERRORS  OF  THE  PENALTY.         295 

and  capital  punishment  is  not  now  abolished  in  that 
kingdom.  This  is  a  double  proof  against  you.  The 
government,  after  trying  your  experiment,  find  them- 
selves compelled  to  return  to  this  statute. 

Then  as  to  Belgium.  Capital  punishment  has  not 
been  abolished.  The  Code  Napoleon  is  in  practice. 
Murderers  are  still  sentenced  to  death,  and  it  is  only 
since  1831  that  Leopold  has  commuted  the  sentence  at 
his  own  discretion,  an  experiment  so  entirely  his  own 
temporary  fancy,  and  so  little  to  be  relied  upon,  that  at 
this  very  time  he  may  be  signing  a  death-warrant  for 
the  execution  of  a  criminal.  If,  since  1831,  there  had 
been  no  executions  in  New- York,  but  simply  the*  punish- 
ment commuted  by  the  Governor,  you  might,  with  the 
same  propriety,  assert  its  abolition  here,  and  institute 
your  statistics  accordingly. 


ARGUMENT  OF  THE   THIRD  EVENING. 


§  I1.  IMPORTANCE   OF   ADHERING   TO   THE   AUTHORITY   OF   SCIPTURE   ON 
THIS   SUBJECT. 

THERE  is  a  singular  desire  on  this  subject  to  get 
rid  of  the  authority  of  the  Scriptures  entirely.  We 
have  been  told  that  it  ought  not  to  be  brought  into  this 
discussion ;  that  it  is  too  much  our  habit,  as  clergymen, 
to  bring  it  forward  on  every  occasion  !  Now  it  is  not  a 
good  sign  to  be  afraid  of  the  Scriptures,  nor  is  there 
anything  likely  to  cast  more  prejudice  over  the  sincerity 
of  your  argument  against  capital  punishment,*  than  the 
manner  in  which,  according  to  your  own  acknowledg- 
ment, it  shuns  the  light  of  the  Bible.  I  am  sure  that 
the  separation  between  the  expediency  and  theology  of 
this  question  is  an  unnatural  one.  What  is  true  in  the- 
ology is  expedient  in  practice,  and  cannot  possibly  be 
otherwise.  If  God  appointed  this  statute  for  human  be- 
ings, it  is  because  it  is  expedient  for  human  beings,  it  is 
for  the  best  interests  of  mankind.  All  the  statistics  on 
this  subject,  all  the  comparisons  between  different  modes 
of  punishment,  are  before  the  Divine  mind,  and  always 


PRINCIPLES   TO   GUIDE   THE    STATE.  297 

have  been,  and  all  the  reason  that  is  in  them  the  Su- 
preme Legislator  must  have  known,  and  acted  accord- 
ingly.  All  things  considered,  it  was  best  that  this 
penalty  should  be  appointed,  death  as  the  penalty  for 
murder.  For  the  prevention  of  crime  it  was  necessary ; 
and  I  hazard  nothing  in  supposing  that  had  it  not  been 
for  this  penalty  among  the  nations,  millions  of  human 
beings  that  have  died  quietly,  would  have  been  sacri- 
ficed by  the  passions  of  mankind.  The  expediency  of 
this  penalty  is  therefore  in  the  highest  sense  an  expedi- 
ency of  benevolence  ;  nor  could  the  Divine  being  have 
been  just  to  his  own  attribute  of  love,  had  he  not  annex- 
ed this  penalty  to  this  crime. 

It  is  great  principles  of  rectitude  and  benevolence, 
which  must  be  our  guide  on  such  questions  as  the  one 
before  us,  and  not  mere  statistics,  or  temporary  experi- 
ments ;  and  if  those  principles  are  put  into  laws  for  us 
by  our  Divine  Legislator,  so  much  the  better.  You 
may  reason  against  appealing  to  them  in  this  form,  and 
you  may  sneer  at  them  as  fanaticism,  as  much  as  you 
please ;  but  on  all  great  occasions  involving  practical 
questions  of  right  and  wrong  in  the  community,  the  gen- 
eral mind  will  revert  to  them,  and  rest  upon  them.  We 
may  bless  God  for  it.  If  it  were  not  so,  if  these  princi- 
ples were  not  elements  of  our  intelligent  being,  and  did 
not  possess  a  power  superior  to  every  consideration,  the 
world  to  the  end  of  time  would  be  one  vast  scene  of 
selfishness  and  cruelty.  The  principles  of  mere  expe- 
diency would  always  prevail  over  the  principle  of  right, 


298  CAPITAL  PUNISHMENT. 

and  men  would  prey  upon  each  other  like  lions  and 
tigers.  Let  those  who  make  the  outcry  of  fanaticism 
when  benevolent  men  in  moral  emergencies  attempt  to 
sway  the  common  people  by  abstract  or  scriptural  prin- 
ciples,  remember  that  it  is  to  the  power  of  those  princi- 
ples, and  not  to  mere  considerations  of  utility  or  expedi- 
ency, that  they  themselves  owe  their  own  condition  of 
happiness  in  human  society. 

The  truth  is  that  the  ocean  of  man's  being  is  swayed 
to  and  fro  beneath  the  influence  of  the  sublime  eternal 
verities  of  Scripture,  as  the  sea  is  dependent  on  the  in- 
fluence of  heavenly  bodies  in  the  majestic  regularity  of 
the  movement  of  its  tides.  Blot  out  those  shining 
truths,  pluck  these  orbs  from  the  firmament,  and  you 
would  leave  naught  but  a  waste  of  waters  infinite,  roll- 
ing in  endless  agitation,  without  law  or  object,  as  in  the 
night  and  death  of  chaos.  It  is  impossible  that  any 
system  of  policy  can  stand,  which  is  not  founded  in 
God's  word ;  and  this  is  but  saying  likewise  that  no 
system  can  stand,  which  is  not  founded  in  the  essential 
elements  of  man's  being.  The  foundations  of  perpe- 
tuity in  states  and  empires  are  only  in  the  book  of  God, 
and  when  institutions  are  not  supported  there,  they  are 
not  supported  in  the  constituent  elements  of  human  na- 
ture. Time  will  prove  their  ruin ;  for  as  fast  as  the 
principles  of  man's  being  come  out  into  notice  in  the 
light  of  the  word  of  God,  such  institutions  will  be  seen 
not  only  not  based  upon  them,  but  in  opposition  to  them. 
And  whether  they  come  into  notice  or  not,  they  are  per- 


FOUNDATION   OF   CRIMINAL  JURISPRUDENCE.         299 

petually  working.  They  heave  the  ocean,  and  nothing 
can  abide  the  contest.  It  is  the  Bible,  as  formed  for  all 
time,  and  containing  principles  consonant  with  man's 
nature  as  made  in  the  image  of  his  God,  and  destined  to 
be  redeemed  into  that  image,  that  comprehends  and 
affords  the  only  lasting  principles  of  state  policy.  That 
state  policy,  which  is  not  consonant  with  the  wisdom  of 
the  Bible,  will  be  found  opposed  to  the  developed  wisdom 
of  human  society,  and  to  the  necessary  principles  of  the 
human  mind.  It  contains  within  itself  the  elements  of 
its  own  destruction  were  it  only  in  its  opposition  to  the 
nature  of  the  soul. 

§  2.  WISDOM   AND   GOODNESS   OF   THE    PENALTY    OF    DEATH     FOR    MUR- 
DER  AS   THE    FOUNDATION   OF   CRIMINAL   JURISPRUDENCE. 

There  is  a  concentration  of  wisdom  and  goodness  in 
the  statute  given  to  Noah  on  murder,  which  we  are  but 
poorly  able  to  appreciate.  It  was  a  legislation,  which, 
taking  the  highest  crime  of  which  man  is  capable  against 
his  race,  as  the  fit  occasion  for  the  concentration  of  its 
wisdom  and  benevolence,  was  to  send  its  influence  over 
the  human  character,  and  over  all  penal  jurisprudence, 
down  through  the  whole  existence  of  mankind.  It  was 
to  take  the  human  conscience  from  its  earliest  develop- 
ment, and  in  answer  to  Cain's  murderous  question, 
"  Am  I  my  brother's  keeper  ?"  it  was  to  answer,  "  Thou 
art  thy  brother's  keeper  ;  thou  shalt  love  thy  neighbour 
as  thyself.  Thou  shalt  no  more  dare  to  think  of  taking 
his  life,  than  thou  wouldst  of  taking  thine  own.  To 


300  CAPITAL   PUNISHMENT. 

take  his  life  is  in  truth  to  take  thine  own ;  for  thine 
shall  surely  answer  for  his."  It  was  in  fact  the  very 
perfection  of  criminal  jurisprudence,  making  murder  a 
suicidal  act.  The  man  that  seeks  to  loosen  the  certain- 
ty of  this  statute,  loosens  a  fundamental  pillar  of  society. 
The  statute  is  fastened  deep  in  the  principles  of  the  hu- 
man mind,  and  every  stroke  you  aim  at  it,  cuts  at  the 
roots  of  those  principles.  As  it  was  intended  to  go 
through  all  human  existence,  so  has  it  gone,  so  deep, 
broad,  universal,  that  to  give  colour  to  your  daring  ex- 
periment, you  can  find  in  the  history  of  the  race  for 
four  thousand  years,  not  one  single  state,  in  which  for 
the  period  of  a  single  generation,  this  penalty  has  been 
dispensed  with.  You  may  be  sure  this  could  not  have 
been  the  case,  were  not  this  legislation  consonant  with 
and  demanded  by  the  elements  of  the  human  mind. 
This  statute  is  a  well-spring  of  truth :  it  is  a  shaft  sunk 
into  the  soul  of  mankind  that  goes  clear  to  the  bottom  of 
ite  sentiments,  out  of  the  reach  of  all  mixture  of  sophis- 
try, deeper  than  all  cross  views  of  a  false  and  mawkish 
sentimentality,  down  into  the  living  rock ;  and  thence 
the  stream  that  gushes  up  is  the  pure  benevolence  of 
truth  as  clear  as  crystal. 

§    3.    TWO     THINGS     INCONTROVERTIBLE  J     MEN'S     LOVE     OF     LIFE,    AND 
THEIR    FEAR    OF    DEATH. 

To  have  any  ground  of  plausibility  in  your  argument 
from  expediency  for  abolishing  the  penalty  oi  death  for 
murder,  you  have  to  deny  two  things ;  first,  that  life  is 


POWER  OP  THE  FEAR  OF  DEATH.        301 

the.  most  sacred  and  desirable  of  all  possessions ;  and 
second,  that  death  is  the  most  terrible  of  all  evils.  Now 
on  both  these  points  the  sense  of  mankind  is  undeni- 
able. There  may  be  deranged  creatures,  who  deny 
both  the  desirableness  of  life,  and  the  terribleness  of 
death ;  just  as  there  are  hypochondriacs,  who  say  that 
their  heads  are  turned  round  upon  their  shoulders,  so 
that  they  can  only  look  behind  them ;  and  there  may  be 
inveterately  hardened  creatures,  who  have  so  drugged 
and  stupified  the  moral  sensibility  with  crime,  that  no 
consideration  whatever  will  move  them ;  but  these  ex- 
ceptions no  more  weaken  the  power  of  the  argument, 
than  the  fall  of  a  solitary  leaf  in  a  great  forest  can 
prove  the  death  of  the  whole  foliage.  You  might  as 
well  bring  forward  one  of  your  monsters  of  the  menag- 
eries, your  oxen  with  two  heads,  or  your  calves  with 
five  legs,  to  disprove  by  such  a  lusus  natura  the  fact  that 
oxen  have  but  one  head,  and  that  calves  are  quadrupeds. 
You  would  be  just  as  wise  to  take  a  petrified  vegetable 
from  the  bottom  of  a  swamp  as  an  example  of  the  qual- 
ities of  the  living  vegetable  world,  as  to  take  the  heart 
of  a  Newgate  criminal,  to  prove  that  death  is  not  the 
greatest  of  evils. 

Now,  life  being  the  most  sacred  of  all  possessions,  it 
is  the  natural  judgment  of  mankind  that  you  must  guard 
it  by  the  most  terrible  of  all  penalties.  But  if  life  be 
the  most  precious  of  all  possessions,  the  human  mind 
again  declares  that  death  is  the  most  dreadful  of  all 
evils,  and  therefore  consequently  the  most  powerful  of  all 
27 


302  CAPITAL   PUNISHMENT. 

penalties  to  restrain  men  from  taking  life.  Until  you 
have  disproved  these  two  things,  you  cannot  advance 
one  step  in  your  argument.  There  is  no  room  for  you. 
You  have  to  root  out  and  destroy  these  two  arguments 
of  the  human  mind,  that  life  is  the  most  desirable  and 
sacred  of  all  possessions,  and  that  Deathjsjhe  King  of 
Terrors.  If  you  can  do  this,  you  can  changetKe  na- 
ture of  mankind.  But  if  not,  then  the  conclusion  is 
irresistible  on  the  ground  of  expediency,  that  capital 
punishment  is  the  most  efficacious  of  all  penalties  to  re- 
strain men  from  the  crime  of  murder,  and  consequently 
for  the  good  of  society  ought  to  be  practised. 

It  is  useless  for  you  to  say  that  capital  punishment 
does  not  restrain  men  from  minor  crimes.  The  judg- 
ment of  the  human  mind  is  not  the  same  as  to  the  fitness 
and  necessity  of  the  penalty  of  death  for  such  crimes. 
Take  the  case  of  stealing,  for  example.  You  have  no 
prior  declaration  of  the  judgment  of  mankind  that  a 
man's  property  is  the  most  sacred  and  desirable  of  all 
possessions,  so  that  if  a  portion  of  it  is  taken,  the  great- 
est  of  all  evils  is  inflicted ;  and  consequently,  the  judg- 
ment of  the  mind  is  against  the  penalty  of  death  in  such 
a  case.  It  does  not  assert  the  congruity  of  such  a  pen- 
alty with  such  a  crime.  But  in  regard  to  murder  there 
is  such  a  congruity ;  the  voice  of  our  common  humanity 
asserts  it.  Taking  life,  you  take  all ;  and  life  being  the 
most  sacred  and  important  of  all  possessions,  the  punish- 
ment by  death,  since  it  is  feared  more  than  all  things, 
ought  to  be  the  penalty.  ^ 


CONTRADICTIONS.  303 


§    4.    CONTRADICTIONS   IN  THE   ARGUMENT   AGAINST    THE    PENALTY   OF 
DEATH. 

Here  it  is  singular  to  see  the  contradictory  nature  of 
the  arguments  of  our  opponents.  They  speak  with  two 
voices.  With  one  voice  they  say  death  is  too  severe, 
too  dreadful,  too  barbarous :  "the  gospel  and  the  gal- 
lows, Christ  and  the  hangman,"  it  is  too  shocking  to  hu- 
manity to  think  of.  With  the  other  voice  they  say  it  is 
not  severe  enough,  not  sufficiently  dreadful ;  you  must 
have  a  punishment  more  to  be  feared  than  death,  and 
therefore  more  barbarous,  in  order  more  effectually  to 
restrain  crime.  If  there  ever  was  an  argument  that 
stultified  itself,  this  does.  If  we  say  death  must  be  the 
penalty,  because  men  fear  death  more  than  all  things 
else,  and  we  wish  to  restrain  the  murderer  from  commit- 
ting crime ;  they  say,  Not  at  all ;  men  do  not  fear  death 
enough,  this  punishment  has  not  enough  of  terror  in  it 
to  restrain  men.  If  we  say,  Death  is  the  just  penalty, 
and  is  demanded  by  benevolence,  they  say,  Not  at  all : 
there  is  too  much  terror  in  it,  it  is  too  dreadful  a  punish- 
ment ;  we  must  have  a  milder  one ! 

There  i$  the  same  contradictory  spirit  in  the  play  of 
their  pretended  humanity.  The  advocates  for  the  abo- 
lition of  the  penalty  of  death  for  murder  are  perpetually 
boasting  of  their  benevolence,  and  with  most  profound 
argument  as  well  as  tasteful  rhetoric,  they  ring  the 
changes  to  the  vulgar  ears  upon  such  elegant  phrases  as 
the  "  gospel  and  the  gallows,  Christ  and  the  hangman." 


304  CAPITAL   PUNISHMENT. 

Now  to  some  minds  the  juxta-position  of  the  words 
Heaven  and  Hell  gives  just  as  mortal  offence,  with  the 
idea  of  the  same  Being  dispensing  the  rewards  of  the 
one,  and  the  punishments  of  the  other ;  and  so  does  that 
of  the  phrases  God  and  a  consuming  fire.  This  not 
being  argument,  I  know  not  very  well  how  to  dispose  of 
it.  But  as  to  the  humanity  of  this  question,  so  far  from 
the  opposition  to  this  statute  being  the  humane  side,  it  is 
inhuman  to  the  last  degree.  It  is  an  effort  not  only  de- 
void of  benevolence,  but  characterized  by  great  cruelty. 
It  is  cruelty  to  take  away  from  the  weak  and  defenceless 
that  protection  which  is  their  only  hope  against  the  fero- 
city of  the  murderer.  We  have  shown  this  too  clearly, 
to  need  a  word  more  on  the  subject. 

§    5.   INHUMANITY   TO    THE    CRIMINAL   AND     TO     SOCIETY     OF    STRIKING 
OUT   THIS   PENALTY. 

To  strike  out  this  penalty  against  murder  is  as  inhu- 
man to  the  criminal  as  it  is  to  society.  This  is  easily 
demonstrated.  Take  the  case  of  that  drunkard,  who 
would  have  murdered  his  wife,  had  it  not  been  for  this 
penalty  ;  now  in  this  case,  by  taking  away  this  penalty, 
you  would  at  once  have  occasioned  the  most  enormous 
of  crimes  in  that  wretched  man,  and  the  miserable  death 
of  that  unprotected  mother.  These  two  immeasurable 
evils  would  have  followed  your  humane  legislation. 
The  same  thing  must  take  place  in  multitudes  of  instan- 
ces, so  that  y/>u  would  at  once  be  creating  assassins, 
and  causing  the  murder  of  their  victims.  Therefore 


WARNING   AGAINST   CRIME.  305 

humanity  to  murderers  themselves  calls  on  you  to  re- 
strain them  by  this  penalty  in  order  to  keep  them  from 
this  crime,  at  the  same  time  that  humanity  and  justice 
to  the  innocent  call  on  you  to  protect  them  from  the  pas- 
sions of  the  murderer.  The  penalty  is  a  warning ;  men 
see  it  from  afar;  it  arrests  their  thoughts,  their  con- 
sciences, before  they  step  within  the  circle  of  tempta- 
tion ;  or,  if  hurried  unawares,  by  violent  passions,  to- 
ward this  point  of  danger  and  of  guilt,  still  does  the 
warning  of  this  tremendous  penalty  arrest  the  soul,  and 
bring  the  passions  of  the  murderer  to  a  stand  even  amid 
the  wildest  tempest.  Now  to  strike  out  this  penalty,  is 
as  inhuman  as  it  would  be,  on  a  dangerous  rock-bound 
coast,  to  destroy  the  light-house  on  the  sharpest,  roughest, 
most  destructive  reef  across  which  the  tide  sweeps  and 
beats  its  billows.  Or  I  may  say  it  is  as  if  some  en- 
emy to  mankind  should  confound  the  signals,  by  which 
the  mariners  of  all  countries  have  hitherto  known  their 
nearness  to  particular  points  of  danger.  Or  it  is  as  if, 
giving  a  chart  to  a  ship  bound  on  a  long  voyage,  you 
should  blot  out  the  black  warning  scroll,  that  marks  a 
sunken  rock  in  the  Atlantic  right  in  that  ship's  course. 
We  are  all  bound  on  the  voyage  of  life,  and  the  reefs  of 
crime  past  which  we  sail  are  indeed  many  and  terrible. 
But  this  is  of  such  appalling  magnitude,  and  the  conse- 
quences of  striking  upon  it  are  so  dreadful,  that  there 
ought,  if  possible,  to  be  a  red  light  upon  it,  whose  lurid 
blaze  should  glare  at  midnight  over  the  whole  ocean.  In 
mercy  to  mankind  God  has  himself  erected  such  a  sig- 
27* 


506  CAPITAL   PUNISHMENT. 

nal,  and  you  are  struggling  to  tear  it  down.    It  is  a  most 
inhuman,  cruel,  anti-scriptural,  and  irreligious  effort. 

§  6.  THIS  PENALTY  CONFIRMED  BY  THE  LAW  OF  CHRIST,  AND  DE- 
MONSTRABLE AS  A  DUTY  SPRINGING  FROM  THE  GREAT  LAW  OF 
LOVE. 

This  pretence  of  humanity  becomes  one  of  unparal- 
leled hypocrisy  when,  it  daringly  attempts  to  array  the 
Spirit  of  Christ  in  the  New  Testament  against  the  Spirit 
of  God  in  the  Old.  There  is  not  only  no  contradiction, 
but  a  perfect  accordance  between  the  New  Testament 
and  the  Old  on  this  point.  The  law  of  Christ  confirms 
this  statute,  and  I  repeat  my  assertion  that  it  is  repro- 
mulgated  under  the  form  of  Love  in  the  gospel.  It  is 
demonstrably  deducible  from  the  rule  "  Thou  shalt  love 
thy  neighbour  as  thyself."  How  much  do  you  love 
yourself?  So  much,  that  if  a  murderer  were  to  set 
upon  you  to  kill  you,  you  would  kill  him  in  self-defence. 
Then  you  are  bound  to  do  the  same  for  your  neighbour. 
If  a  murderer  sets  upon  your  neighbour  to  kill  him,  you 
are  bound  to  defend  your  neighbour,  by  putting,  if  need 
be,  the  murderer  to  death.  But  the  same  law  of  love 
binds  the  government  to  do  this,  especially  when  the 
community  have  to  so  great  a  degree  relinquished  this 
business  of  self-defence,  in  order  that  the  government 
may  perform  it  more  effectually.  Now  the  same  law 
of  benevolence,  which  ought  to  make  a  murderer  know 
that  if,  while  you  are  standing  by,  he  attacks  your  neigh- 
bour to  kill  him,  you  will  defend  your  neighbour  by  kill- 


PREVENTIVE   EFFICACY.  307 


ing,  if  need  be,  the  murderer,  ought  to  make  him  feel 
that  the  government  is  exerting  the  same  watchful  care, 
and  that  if,  while  the  government  is  standing  by,  he  at- 
tempts to  kill,  or  does  kill  your  neighbour,  the  govern- 
ment also  will  protect  your  neighbour  as  you  would,  at 
the  expense  of  the  murderer's  life.  But  as  the  effort  of 
the  government  is  protection  and  prevention,  and  not  re- 
venge, there  is  no  possibility  of  this  but  by  making  the 
murderer  know  before-hand  that  if  he  murders,  he  shall 
himself  die.  If  in  every  case  of  attempted  murder,  the 
government  could  itself  stand  by,  and  at  the  moment  of 
peril  draw  its  sword,  it  would  be  bound  to  cut  off  the 
murderer  before  he  kills  his  victim  ;  but  as  this  is  im- 
possible, the  next  degree  of  protection  must  be  resorted 
to,  which  is  preventive,  saying  to  the  murderer,  If  you 
murder,  you  die  yourself;  the  whole  power  of  the  gov- 
ernment will  be  exerted  to  put  you  to  death,  if  you  kill 
another.  But  to  say  to  the  murderer,  Thou  shalt  not 
surely  die,  is  most  inhumanly  to  give  your  neighbour  up 
unprotected  to  the  stab  of  the  assassin.  It  is  perfectly 
plain,  therefore,  that  this  statute  is  repromulgated  in  the 
great  law  of  love,  Thou  shalt  love  thy  neighbour  as  thy- 
self. ^ 

§     7.    THIS    PENALTY    NECESSARY    TO     PRESERVE     SOCIETY     FROM     THE 
ANARCHY   AND   VIOLENCE    OF    PRIVATE    REVENGE. 

The  truth  is,  there  is  no  alternative  between  the  be-  ' 
nevolence  of  this  statute  of  death  to  the  murderer,  and 
the  violence  of  private  revenge.     One  or  the  other,  so- 


308  CAPITAL   PUNISHMENT. 

ciety  will  have,  and  if  they  throw  off  the  protection  of 
the  one,  they  must  endure  the  misery  of  the  other. 
This  protecting  power  must  be  lodged  in  the  govern- 
ment, with  a  certainty  of  its  execution,  or  men  must  go 
armed,  and  we  must  protect  ourselves,  and  our  neigh- 
bours too,  against  the  murderer  as  we  can.  We  may 
depend  upon  it  that,  as  a  general  rule,  these  men  who 
talk  so  loudly  of  the  spirit  of  forgiveness,  and  quote 
scripture  with  so  much  volubility  and  delight,  Resist  not 
evil,  Recompense  to  no  man  evil  for  evil,  Vengeance  is 
mine,  I  will  repay,  saith  the  Lord,  will  be  the  first  to 
disallow  and  discredit  their  own  doctrine,  if  you  put 
them  in  personal  danger ;  if  you  insult  them  when  the 
laws  of  dishonour  call  for  the  duel ;  or  if  you  take  the 
life  of  a  brother  or  a  son.  What  then  becomes  of  all 
their  beautiful  morality  ?  They  will  avenge  themselves, 
and  if  the  government  will  not  do  it,  it  will  be  done  at  a 
cost  of  blood  and  violence  and  moral  outrage  in  the 
community,  more  dreadful  than  twenty  solemn  public 
executions  of  the  guilty.  ^ 

Y-There  is  such  a  spirit  of  revenge  in  the  human  heart, 
that  you  must  guard  against  it.  You  must  take  its  in- 
dulgence from  individuals,  where  it  exists  as  revenge, 
and  commit  it  to  the  government  to  vindicate  the  law, 
without  malice,  without  vindictiveness,  in  the  form  of 
justice  and  protection.  When  you  say  to  another, 
Avenge  not  yourself,  you  must  be  prepared  to  say,  The 
law  will  do  it  for  you.  When  you  say  to  another,  Pro- 
tect not  your  own  rights,  you  must  be  prepared  to  say, 


MOCK   HUMANITY.  309 


The  government  will  protect  them  for  you.  If  you  do 
not,  there  ensues  inevitably  a  shocking  state  of  society. 
Let  this  statute  be  done  away,  and  you  will  no  more 
hear  these  persons  who  have  attempted  to  set  the  gospel 
against  it,  preaching  forgiveness.  The  maxims  which 
our  blessed  Lord  directs  against  private  malice,  they, 
with  most  intolerable  sophistry,  direct  against  that  pub- 
lic, solemn  justice  of  the  government,  which  is  God's 
own  avenging  interposition,  as  he  has  himself  declared 
to  us.  Do  that  away,  and  then  see  if  these  men  will 
give  you  any  more  of  their  homilies  about  not  resisting 
evil,  not  avenging  injuries.  > 

§    8.   THE    EFFORT     AGAINST    THIS    PENALTY    A    MOCK    HUMANITY,    BUT 
A     REAL     CRUELTY — THIS    DEMONSTRATED    BY    INCONTROVERTIBLE 

STATISTICS. 

It  is  plain  then  that  this  effort  is  a  mock  humanity,  but 
a  real  and  wholesale  cruelty.  I  will  show  you  this  by 
statistics.  I  find  in  the  report  of  the  Belgian  Minister 
of  Justice  to  the  King,  A.  N.  J.  Ernst,  that  the  number  of 
murders  in  Belgium  attempted  or  consummated  from  1831 
to  1834,  and  of  which  the"  authors  remain  unknown,  were 
as  follows:  6  poisonings,  60  infanticides,  119  assassina- 
tions :  making  in  all  185.  Now  here  are  185  murders  in 
four  years,  that  is,  462  murders  in  ten  years.  Now  take 
the  ten  years  to  come  and  look  forward.  The  question  is, 
what  is  to  be  done  for  the  security  of  society  1  Here  are 
the  lives  of  462  innocent  persons  in  danger ;  for,  the  same 
causes  existing,  the  same  crimes  will  be  enacted  these 


310  CAPITAL   PUNISHMENT. 

ten  years  to  come  as  the  ten  past.  The  assassins,  you 
know,  in  some  form  or  other,  will  attack  these  innocent 
persons.  What  are  you  bound  to  do  ?  The  least  you 
can  do  is  to  threaten  them  with  death,  if  they  execute 
their  purposes.  You  know  that  no  other  penalty,  no 
lesser  fear,  has  any  effect  upon  them.  To  take  away 
this  penalty  is  in  effect  to  say  beforehand,  We  give  up 
the  462  innocent  persons  unprotected,  and  without  any 
effort  to  save  them,  to  the  stab  of  the  assassin.  We 
value  the  lives  of  the  462  assassins,  more  than  the  lives 
of  their  462  intended  victims.  The  assassins,  although 
they  destroy  the  lives  of  the  462  innocent  persons,  shall 
themselves  be  protected.  I  repeat  it,  this  effort  is  a 
mock  humanity,  but  a  real  and  wholesale  cruelty. 
^  This  benevolence  to  murderers,  but  disregard  of  their 
victims,  reminds  me  of  the  benevolence  of  that  man 
alluded  to  with  praise  by  my  opponent,  who  would  go  a 
mile  out  of  the  way  to  avoid  treading  on  a  worm,  while 
he  was  at  the  very  same  time  thinking  of  murdering 
one  of  his  fellow-creatures  !  J 

§   9.   WEAKNESS    AND     FALSEHOOD     OF    THE    STATISTICAL    ARGUMENT 
AGAINST   THIS   PENALTY. 

I  am  now  going  to  prove  incontrovertibly  the  false- 
hood of  the  statistical  argument  of  my  opponent.  You 
are  well  aware  that  it  is  the  main  foundation  on  which 
the  advocates  for  abolishing  capital  punishment  build, 
and  that  they  have  put  it  forth  before  us,  as  if  it  were 
impregnable.  I  shall  show  that  it  is  not  only  unsafe, 


TIME    FOR   AN    EXPERIMENT.  311 

but  in  its  most  important  particulars  absolutely  untrue. 
Statistics  by  figures  in  morals  are  plausible,  but  if  they 
be  not  very  accurate,  they  are  sure  to  go  against  you. 
In  the  present  case  this  sort  of  reasoning  is  as  a  bridge 
thrown  over  a  deep  and  rapid  stream,  where  you  are 
very  likely  to  fall  through.  It  reminds  me  of  those 
bridges  you  may  sometimes  meet  in  the  country,  with  a 
notice  posted  up  at  the  entrance,  "  Five  dollars  fine  for 
crossing  this  bridge  faster  than  on  a  walk."  Just  so 
with  this  reasoning.  If  you  will  take  passage  in  the 
carriage  of  the  man  that  built  the  bridge,  and  go  softly, 
you  may  perhaps  go  safely ;  but  if  you  attempt  to  drive 
a  great  lumbering  wagon  of  heavy  argument  across  it, 
you  shake  it  to  pieces. 

The  first  thing  that  strikes  the  mind  in  this  statistical 
argument  is  the  almost  imperceptibly  minute  space  of 
time  that  it  covers.  The  only  experiment  which  has 
been  brought  forward  with  reliable  data  of  any  kind, 
was  one  of  five  years  !  five  years'  commutation,  not 
abolition  of  the  penalty  of  death,  in  a  European  State 
not  one  twelfth  part  so  large  as  the  island  kingdom  of 
Great  Britain  !  Now  it  is  so  ineffably  absurd  to  pretend 
to  draw  conclusions  for  the  legislation  of  the  world  from 
such  an  experiment,  that  the  attempt  becomes  absolutely 
ludicrous.  Even  on  the  largest  scale  of  territory,  you 
cannot  possibly  rely  on  any  experiments  or  statistics, 
which  do  not  cover  a  space  of  time  that  goes  through 
the  whole  education  of  the  life  of  man.  Any  time  less 
than  a  period  sufficient  for  the  whole  formation  and  de- 


CAPITAL   PUNISHMENT. 


velopment  of  human  character  is  utterly  vain.  The 
effect  must  be  seen  on  a  whole  generation.  The  second 
thing  that  strikes  the  mind  in  this  argument  is  the  utter 
impossibility  of  separating  and  distinguishing  between 
the  influence  of  concurring  causes.  You  can  never 
know  how  much  other  changes,  events,  systems  of  poli- 
cy, or  ameliorating  influences  —  Sabbath-  schools,  Bibles, 
good  books,  tracts,  and  the  prevalence  of  temperance  — 
have  combined  to  produce  the  effect  ascribed  by  you  to 
a  single  cause. 

There  may  have  been  twenty  causes  operating  to 
produce  a  change  in  the  statistics  of  crime  during  a 
particular  period,  when  an  amelioration  or  change  of 
any  kind  in  the  penal  code  may  have  had  nothing  to  do 
with  it.  To  keep  the  eye  in  such  a  case  fixed  only  on 
this  one  cause  is  indeed  absurd.  You  are  always  in 
danger  of  the  post  hoc,  propter  hoc  ;  just  as  if  an  igno- 
rant boor  who  has  all  his  life  got  out  of  his  bed  before 
the  dawn,  should  believe  and  say  that  his  early  rising 
was  the  cause  of  the  sun's  rising  ! 

It  is  the  argument  of  that  old  man  to  Master  Sir 
Thomas  More,  of  which  Latimer  gives  us  so  amusing 
an  account,  that  Tenterden  steeple  was  the  cause  of 
Goodwin  Sands  ;  for  he  was  a  very  old  man,  and  he 
could  remember  the  time  when  Tenterden  steeple  was 
built,  but  he  could  not  remember  to  have  heard  any- 
thing said  before  that  time,  about  the  sands  in  Goodwin 
harbor  ;  therefore  he  concluded  that  Tenterden  steeple 


EDUCATION    OF    LAW.  313 


was  the  cause  of  Goodwin  Sands.     This  is  the  logic  of 
nay  opponent. 

§    10.    LENGTH    OF   TIME    NECESSARY    FOR   A   PROPER    STATISTICAL    EX- 
PERIMENT. 

I  have  said  that  the  period  of  a  generation  is  the  least 
possible  period  for  an  experiment ;  you  cannot  in  any 
less  time,  tell  either  what  the  human  character  and  in- 
terests suffer,  or  what  they  gain  by  such  a  change.  A 
system  of  law,  we  are  to  remember,  is  in  a  great  degree 
the  education  of  the  community.  Its  influence  is  con- 
stant, silent,  unnoticed,  but  mighty.  It  is  a  medicine  of 
society,  the  operation  of  which,  though  not  sudden,  is 
lasting  and  powerful.  The  penalty  of  death  for  murder 
has  been  for  thousands  of  years  exerting  a  vast  influence 
over  the  moral  sense  of  mankind.  It  has  acted  on  the 
conscience,  it  has  helped  the  law  of  love,  it  has  repress- 
ed crime,  it  has  been  an  ingredient  in  our  moral  atmos- 
phere, which  at  every  inspiration  of  our  moral  being 
has  gone  into  our  circulation.  If  you  take  away  its  in- 
fluence, you  make  a  change  that  cannot  at  present  be 
known  fully  in  its  disastrous  effect.  It  is  like  a  delete- 
rious alteration  in  the  combination  of  the  gases  that  con- 
stitute our  atmosphere.  This  penalty  is  a  tonic  to  our 
moral  constitution ;  the  injurious  effect  of  suspending  it 
cannot  possibly  be  seen  in  less  than  the  growth  of  a  com- 
plete generation.  On  the  other  hand,  the  principles  on 
which  this  statute  is  founded  are  eternal  and  immutable  ; 
and  when  you  grapple  with  principles,  you  are  strong 

28 


314  CAPITAL   PUNISHMENT. 

and  safe.  They  are  as  iron  bolts  in  the  solid  rock  of 
the  mind  ;  and  unless  you  fasten  your  chains  of  argu- 
ment to  them,  you  have  nothing  to  hold  on  by.  Every- 
thing else  is  unstable  and  slippery,  as  shifting  as  the 
sand,  and  as  dangerous  to  build  upon.  s- 

§11.     STATE     OF    THE    CASE    IN     RUSSIA CAPITAL    PUNISHMENT    NOT 

ABOLISHED   THERE,  BUT   HELD    IN   THE   POWER   OF  THE    EMPEROR. 

One  would  really  have  thought  from  the  language  of 
my  opponent  that  all  Europe  had  abandoned  the  statute 
of  Capital  Punishment ;  whereas,  not  one  single  State  or 
nation  can  be  found,  where  this  is  the  case.  We  were 
pointed  to  Russia  as  an  example  of  penal  mildness  and 
refinement,  that  ought  to  make  us  blush  at  our  own  bar- 
barism. I  have  already  stated  some  facts  in  regard  to 
Russia,  that  totally  change  the  aspect  of  the  statistical 
argument  here.  I  am  informed  in  addition  by  a  gentle- 
man with  whose  high  reputation  we  are  all  familiar,  who 
has  travelled  extensively  in  Russia,  and  was  well  ac- 
quainted with  the  Emperor,  (Rev.  Dr.  Baird),  that  mur- 
ders are  very  frequent  in  that  country.  Of  the  400 
criminals  whom  he  saw  on  one  occasion  about  to  depart 
into  Siberia,  he  judges  from  statistical  data,  that  one- 
tenth  part  were  murderers.  Criminals  are  sent  to  Si- 
beria, partly  for  the  purpose  of  colonizing  that  portion 
of  the  Russian  empire.  The  punishment  of  the  knout 
is  first  administered  on  murderers,  sometimes  the  tongue 
has  been  cut  off  in  addition,  and  if  the  criminal  do  not 
die  in  consequence  of  this  barbarity,  he  goes  into  exile. 


PENALTY   OF    DEATH   IN   RUSSIA.  315 

On  every  individual  who  escapes  from  exile  and  returns, 
capital  punishment  is  inflicted.  The  infliction  of  death 
as  a  legal  penalty  was  taken  away,  Dr.  Baird  believes, 
not  from  the  opinion  that  it  did  not  prevent  crime,  or  was 
not  the  most  effectual  penalty,  but  because  by  irrespon- 
sible noblemen  and  corrupt  courts,  there  being  no  trial 
by  jury,  the  power  was  so  shockingly  abused,  it  was 
taken  away  from  among  the  legal  penalties,  and  reserved 
as  a  power  of  the  throne  only.  This  change  it  is  be- 
lieved was  made  because  it  would  not  do  for  the  nobles 
to  have  the  power  of  life  and  death  over  their  serfs,  with 
the  power  of  swaying  the  judges  at  their  pleasure,  where 
there  is  no  trial  by  jury,  and  the  administration  of  jus- 
tice in  consequence  fearfully  corrupt. 

Now  you  can  no  more  reason  from  such  a  state  of 
things  to  our  country,  than  you  could  reason  from  Botany 
Bay  to  England.  And  yet  this  is  the  country  to  which 
we  are  pointed,  forsooth,  for  an  example  of  mildness  and 
wisdom !  A  country  without  the  privilege  of  trial  by 
jury,  a  country  where  punishments  of  the  most  barba- 
rous description  are  inflicted,  a  country  which  is  an  ab- 
solute despotism,  increased  in  its  unlimited  power,  by 
the  very  fact  that  capital  punishment  is  taken  from  the 
legal  penalties,  and  administered  by  the  will  of  the  Em- 
peror ! 

§    12.   BELGIAN    STATISTICS   IN    FAVOUR   OF   CAPITAL   PUNISHMENT. 

We  come  now  to  Belgium.  I  really  know  not  how  to 
account  for  the  hardihood  of  our  opponents  in  referring 


316  CAPITAL   PUNISHMENT. 

to  this  case.  I  hold  in  my  hand  a  report  on  the  admin- 
istration of  criminal  justice  in  Belgium,  during  the  years 
1831,  32,  33,  and  34,  presented  by  the  Minister  of  Jus- 
tice to  the  King.  This  is  the  period  referred  to  by  the 
other  side  with  such  daring  confidence.  If  my  opponents 
have  not  seen  this  work,  I  pity  them  for  unconsciously 
bringing  forward  statistics  in  the  teeth  and  eyes  of  truth  ; 
if  they  have  seen  it,  I  shall  show  the  most  outrageous 
misrepresentation.  The  whole  of  these  statistics  bear 
in  favour  of  capital  punishment,  and  decide  with  great 
strength,  so  far  as  such  a  little  modicum  of  evidence  can 
decide  anything,  against  the  abrogation  or  commutation 
of  the  penalty  of  death  for  murder. 

The  first  classification  among  these  statistics,  which 
bears  directly  on  our  argument,  distinguishes  the  crimes 
against  persons,  and  against  property.  Under  the  head 
of  crimes  against  persons  are  included,  of  course,  the 
murders.  Now  from  1831,  the  time  when  the  experi- 
ment of  Leopold's  lenity  commenced,  to  1835,  the  ac- 
cusations for  crimes  against  persons  were  increasing. 

In  1831,  they  were  123 

"  1832,  «         «  130 

"  1833,  "         "  122 

"  1834,  «         «  139 

The  last  year  of  this  experiment  proved  to  be  the  most 
fruitful  in  crime.  Among  the  crimes  attempted  or  con- 
summated,  of  which  the  authors  were  not  discovered, 


BELGIAN    STATISTICS.  317 

there  were  from  1831  to  1834,  six  poisonings,  sixty  in- 
fanticides,  119  assassinations;  in  all,  185  murders  in 
four  years.  "  In  view  of  such  grave  statistics  as  these," 
the  Minister  of  Justice  remarks,  that  "  it  is  manifest  that 
the  administration  of  criminal  justice  does  uot  possess 
the  efficiency  necessary  for  the  restraint  of  crime." 

It  is  important  distinctly  to  remember  that  the  period 
here  spoken  of  is  the  very  period,  in  regard  to  which  it 
has  been  asserted  by  our  opponents  that  the  statistical 
results  proved  a  diminution  of  crime  under  the  abolition 
of  capital  punishment.  In  the  first  place,  there  was  no 
such  abolition,  but  only  a  temporary  suspension  of  the 
penalty  by  Leopold.  In  the  next  place,  under  the  exper- 
iment of  this  suspension,  crimes  increased,  especially 
murders.  In  the  third  place,  the  authority  of  the  Bel- 
gian Minister  of  Justice  is  beyond  dispute  on  this  point, 
and  his  statistics,  and  the  conclusions  by  him  drawn 
from  them,  are  perfectly  to  be  relied  upon. 

Proceeding  a  little  farther  in  our  examination  and 
analysis  of  these  statistics,  and  comparing  the  number 
of  crimes  of  every  kind  unpunished,  there  were  in 
1831,  774 ;  in  1834,  829 ;  showing  an  increase  in  these 
four  years.  In  1831,  the  number  of  crimes  in  compar- 
ison with  the  population,  was  one  to  6560  inhabitants ; 
in  1834,  one  to  6476,  showing  in  this  way  also  an  in- 
crease. The  number  of  murders  in  the  period  from 
1826  to  1830,  when  capital  punishment  was  executed, 
being  compared  with  that  in  the  period  from  1831  to 
1834,  when  it  was  commuted,  gives  an  increase  in  the 
28* 


318  CAPITAL    PUNISHMENT. 

last  period  in  proportion  to  the  number  of  crimes,  36 
being  the  annual  average  of  murders,  in  that  proportion, 
from  1826  to  1830,  and  42  from  1831  to  1834.  The 
Minister  of  Justice  remarks,  that  from  this  table  it  is 
manifest  that  from  1831  to  1834,  the  number  of  assas- 
sinations and  murders  has  increased  compared  with  the 
live  preceding  years.  Again,  in  the  year  1829,  when 
capital  punishment  was  executed,  only  11  persons  were 
condemned  to  death;  in  1830,  only  four;  in  1831,  when 
capital  punishment  began  to  be  transmuted,  it  rose  to 
nine,  but  in  1834,  to  28 ; — here  again  an  increase  under 
the  experiment  of  lenity.  Once  more,  in  1831  the 
number  of  assaults  and  batteries  was  4444  ;  in  1834 
it  was  6051,  showing  an  increase  of  1600  under 
the  experiment  of  lenity.  In  1831  there  were  before 
the  tribunal  of  police  21,711  criminals  ;  in  1834, 
24,756,  showing  an  increase  of  more  than  3000.  Du- 
ring these  four  years  there  was  a  constant  increase  of 
crime.  In  1831,  the  tribunal  of  simple  police  rendered 
7897  judgments;  in  1834,  11,762,  an  increase  of  3865. 
These  Belgian  statistics  are  thus  proved  to  be  tri- 
umphantly in  favour  of  capital  punishment.  In  view 
of  these  statistics,  every  person  must  be  ready  to  say 
with  the  Minister  of  Justice,  that  the  administration  of 
criminal  jurisprudence  in  Belgium,  manifestly  does  not 
possess  sufficient  energy  to  restrain  from  crime.  And 
what  lesson  do  these  statistics  teach,  as  to  the  conse- 
quences of  Leopold's  experiment  of  not  executing  the 
penalty  of  death  for  murder  ?  Surely,  so  far  as  any 


BELGIAN    STATISTICS.  319 


conclusion  can  be  drawn  from  so  limited  a  period,  it 
must  be  this,  that  Leopold's  intention,  being  promulga- 
ted, occasioned  from  the  first  a  relaxation  of  moral  and 
penal  restraint  in  the  vicious  community,  the  conse- 
quence of  which  was  a  marked  increase  of  crime,  es- 
pecially of  murders.  In  view  of  these  statistics,  given 
under  the  hand  of  the  Minister  of  Justice,  and  certainly 
to  be  relied  upon,  I  know  not  how  to  denominate  the 
statistics  to  which  we  have  been  treated  in  the  columns 
of  some  of  the  newspapers,  and  on  which  our  opponents 
aeem  unfortunately  to  have  rested,  as  anything  else  than 
a  bare  falsehood.  It  is  highly  probable  that  the  statis- 
tics of  Belgium  for  the  last  five  years,  exhibit  proofs  as 
strongly  in  favour  of  capital  punishment,  as  for  the  four 
years  whose  record  is  before  us ;  that  is,  if  Leopold's 
lenity  has  been  continued ;  for  the  consequence  of  an 
assurance  that  the  law,  though  remaining,  will  not  be 
executed  against  murderers,  must  be  a  lowering  of  the 
moral  sense,  and  an  increase  of  crime.  The  opinion  of 
the  Minister  of  Justice  is  strongly  marked  ;  had  he  been 
going  to  remonstrate  against  the  king's  experiment,  he 
could  hardly  have  said  more ;  he  has  told  king  Leopold 
plainly  that  thus  far  during  this  experiment,  crime  of 
the  worst  kind  is  on  the  increase,  that  it  has  increased 
above  and  compared  with  the  period  preceding  this  ex- 
periment, and  that  his  Majesty's  criminal  records  prove 
that  his  criminal  jurisprudence  needs  more  energy. 
Thus  the  statistical  argument  from  Belgium  turns  pow- 
erfully in  favour  of  capital  punishment ;  and  both  the 


320  CAPITAL    PUNISHMENT. 

statistical  and  historical  argument  of  my  opponent,  whe- 
ther you  take  the  case  of  Russia,  Tuscany,  or  Belgium, 
breaks  down  at  every  step. 

The  case  of  Tuscany  has  been  satisfactorily  disposed 
of,  the  argument  from  the  experiment  there  being  turned 
directly  against  the  abolition  of  capital  punishment,  since 
it  has  been  found  necessary  by  experience,  probably 
from  the  increase  of  crime,  as  in  Belgium,  to  return  to 
that  punishment.  A  resident  on  the  spot,  in  Florence, 
near  the  time  when  the  statute  establishing  capital  pun- 
ishment was  repromulgated,  gives  the  following  account 
of  the  matter : 

"  The  law  abolishing  capital  punishment  was  pro- 
mulged  under  Peter  Leopold,  grandfather  of  the  reign- 
ing Duke.  A  new  code  has  recently  been  published,  in 
which  capital  punishment  is  threatened  in  certain  cases. 
Thus  Tuscany,  whose  example  has  often  been  quoted 
by  those  who  would  not  leave  the  power  of  taking  life 
to  any  tribunal,  has  gone  back  to  her  old  position,  and 
taken  in  her  hand  again  the  sword  of  justice,  which 
many  years  ago  she  had  laid  down.  The  results  of  hei 
experiment,  of  course,  have  not  been  satisfactory.  An 
American  resident  of  Florence  observed  that  the  number 
of  murders  in  Tuscany  in  a  single  year,  exceeded  that 
of  the  murders  committed  in  all  the  United  States  in  the 
same  period.  However  that  may  be,  it  is  a  clear  case, 
that  this  humane  government  has  felt  the  necessity  of 
giving  to  the  law  which  guards  the  life  of  the  citizen,  a 


HISTORICAL    ARGUMENT.  321 

more  fearful  penalty  than  that  which  it  has  possessed  for 
a  long  time  past." 

Thus  the  attempts  to  build  an  historical  argument 
against  the  penalty  of  death  for  murder  have  all  signally 
failed,  as  well  as  the  pretences  of  a  statistical  argument. 
They  cannot  stand  the  test  of  truth.  Time  destroys  the 
historical  argument,  even  the  semblance  of  it ;  it  crum- 
bles before  the  passing  of  a  single  generation;  and  a 
correct  arithmetic  turns  the  statistical  argument  on  the 
other  side. 

§  13.  POWERFUL    HISTORICAL   ARGUMENT    IN   FAVOUR   OF   CAPITAL  PUN- 
ISHMENT. 

I  shall  now  adduce  to  you  on  our  side  an  historical  ar- 
gument of  a  very  different  nature.  I  shall  refer  you  to 
the  time  in  which  the  effects  of  the  penalty  of  death  for 
murder  were  tried  in  the  most  enlightened  and  civilized 
nation  in  the  world  for  one  thousand  five  hundred  years. 
For  more  than  one  thousand  five  hundred  years  in  the 
kingdom  of  Judea  the  experiment  was  tried,  and  the  re- 
sult was,  that  when  the  penalty  of  death  for  murder  was 
most  faithfully  executed,  the  crime  of  murder  was  less 
common ;  but  that  in  times  when  that  penalty  was  not 
executed,  or,  against  the  requisitions  of  the  Divine  law, 
was  evaded,  murders  and  all  other  crimes  became  com- 
mon ;  the  land  was  full  of  blood  ;  and  the  accusation  of 
cruelty  and  oppression  is  brought  against  the  nation,  be- 
cause its  princes  not  only  did  not  execute  the  law,  but 
even  themselves  murdered  with  impunity.  Now  this  is 


322  CAPITAL   PUNISHMENT. 

a  grand  experiment ;  there  is  no  being  deceived  in  it ; 
it  is  not  a  limited  induction,  but  extends  over  one  thou- 
sand five  hundred  years.  And  here  let  me  remark  that 
the  Divine  Legislator,  under  whose  administration  this 
experiment  was  tried,  had  a  perfect  knowledge  of  all 
objections  that  could  be  brought  against  it ;  there  was  the 
same  uncertainty  even  in  thp  best  conducted  legal  in- 
vestigations ;  the  same  difficulty  of  bringing  the  warped 
consciences  of  men  up  to  the  standard  of  the  law  ;  the 
same  false  philanthropy  for  the  murderer,  and  unwilling- 
ness of  jurors  to  convict ;  the  same  danger  lest  the  in- 
nocent should  be  punished  instead  of  the  guilty;  the 
same  objection  of  dismissing  a  man  into  eternity  unpre- 
pared for  death  ;  but  in  view  of  all  these  things  the  pen- 
alty of  death  for  murder  was  affixed  to  the  law,  and  the 
experiment  was  continued  for  more  than  one  thousand 
five  hundred  years  in  the  nation  under  God's  particular 
care,  while  in  regard  to  all  other  nations  there  stood  un- 
repealed,  the  old  Noachic  ordinance,  Whoso  sheddeth 
man's  blood,  by  man  shall  his  blood  be  shed.  Now  I 
think  this  experiment  may  safely  be  put  against  any  ten 
years  in  Belgium,  or  twenty  in  Tuscany,  or  eighty  or 
one  hundred  under  the  wisdom  of  a  murderer  and 
adulteress,  in  the  despotism  of  Russia. 

^  §    14.   A   FINAL   OBJECTION   ANSWERED. 

There  remains  to  be  answered  one  objection.  It  is 
that  of  the  danger  of  dismissing  a  man  from  probation 
in  his  sins.  "  By  what  authority,"  it  is  asked,  "  do  we 


SPACE    FOR    REPENTANCE.  323 

limit  the  space  of  a  man  for  repentance  ?"  The  objec- 
tion has,  of  course,  no  weight  with  those  who  found  the 
duty  to  take  the  life  of  the  criminal  on  the  Divine  in- 
junction, because,  it  is  the  Divine  Being,  who,  in  the 
penalty  itself,  limits  his  space  for  repentance,  just  as  he 
does  that  of  every  man,  in  his  providence,  by  death. 
But  I  answer,  first,  my  opponent  has  conceded  the  right 
of  society,  in  certain  cases,  to  take  life,  the  right  of  a 
man  in  self-defence,  and  of  society  also.  But  is  not  this 
the  limiting  a  man's  space  for  repentance  ?  Is  not  this 
to  run  the  hazard  of  cutting  a  man  oif  in  his  sins  ? 
Now  if  a  man  may  do  this  suddenly  in  self-defence, 
much  more  may  society  do  it  deliberately,  for  the  de- 
fence of  society,  allowing  even  the  criminal  abundant 
time  for  repentance.  But  we  contend  that  a  murderer, 
condemned  to  death,  with  several  weeks  intervening  be- 
tween the  sentence  and  the  execution,  is  incomparably 
more  likely  to  repent  than  if  you  imprisoned  him  for 
life.  Indeed,  it  is  the  declaration  of  God  himself,  that 
because  sentence  against  an  evil  work  is  not  executed 
speedily,  therefore  the  heart  of  the  sons  of  men  is  fully 
set  in  them  to  do  evil.  I  suppose  that  we  all,  if  we 
knew  that  sentence  of  death  was  issued  against  us,  and 
would  infallibly  be  executed  within  a  few  weeks,  the 
time  being  fixed,  should  address  ourselves  much  more 
diligently  and  effectually  to  the  work  of  repentance 
than  if  we  had  an  indefinite  respite.  And  the  sentence 
might  be  the  very  means  of  our  repentance,  while  the 
respite  might  be  the  very  means  of  our  never  repenting. 


324  CAPITAL   PUNISHMENT. 

Why  then  should  it  not  be  so  with  the  criminal  ?  In 
this  view,  punishment  by  death  is  infinitely  more  humane 
to  the  spiritual  interests  of  the  murderer,  than  imprison- 
ment for  life.  By  imprisoning  him  for  life,  you  may 
cause  his  eternal  death ;  by  sentencing  him  to  death,  you 
may  cause  his  eternal  salvation. 

But  this  objection,  to  many  minds,  is  met  more  power- 
fully by  throwing  it  back  upon  the  abolition  of  this  pen- 
alty. It  is  those,  who  aim  at  abolishing  this  penalty, 
who  would  cause  men  to  be  sent  into  eternity  unprepa- 
red. In  the  abolition  of  this  penalty,  the  number  of 
murders  would  inevitably  be  increased,  and  every  indi- 
vidual so  murdered  is  sent  into  eternity,  not  with  the 
weeks  of  preparation,  and  all  the  solemn  holy  induce- 
ments and  appliances  allotted  to  the  murderer,  but  in  a 
moment,  without  a  breath  for  prayer,  without  time  so 
much  as  to  say,  God  be  merciful  to  me  a  sinner.  Now 
I  say  without  hesitation,  it  is  worse  to  send  one  person 
into  eternity  in  this  manner,  than  it  would  be  to  send  ten 
murderers  with  six  weeks'  warning.  But  if  you  were  to 
repeal  this  penalty  of  death  for  murder,  then  by  the  in- 
crease of  this  crime,  for  every  murderer  now  with  sol- 
emn warning  executed,  you  would  probably  be  the  oc- 
casion of  sending  two  or  three  innocent  persons  unwarn- 
ed and  unprepared  into  eternity.  This  is  an  inevitable 
result  on  the  repeal  of  this  penalty.  I  say,  therefore, 
that  its  abolition  would  be  an  act  of  impiety ;  for  the 
substitution  of  imprisonment  for  life  would  probably 
make  most  murderers  die  in  their  sins,  while  it  would 


CRITICISMS   ON    THE    NOACHIC    STATUTE.  325 

send  many  innocent  persons  unprepared  into  eternity.  T 
turn  this  objection,  therefore,  back  with  tenfold  power 
upon  your  own  proposed  repeal  of  the  penalty  of  death 
for  murder.  It  constitutes  in  the  mind  of  every  benev- 
olent person  one  of  the  very  strongest  arguments  against 
such  a  repeal. 

§  15.   FINAL  ATTEMPT  TO  EVADE  THE  STATUTE. ABSURDITY  OF  THE 

EVASION  DEMONSTRATED. 

Before  concluding  my  argument  I  must  return  for  one 
moment  to  the  great  statute  of  Jehovah  with  which  we 
set  out,  in  order  to  expose  the  fallacy  of  the  latest  mode 
adopted  by  my  opponent  for  evading  the  binding  force  of 
this  statute.  He  proposes  to  render  the  ordinance,  among 
men,  instead  of  ly  man  shall  his  blood  be  shed.  Now, 
in  the  first  place,  this  would  not  help  the  matter  at  all, 
since  it  may  be  powerfully  argued,  if  you  take  this  as 
the  translation,  that  it  manifestly  refers  to  the  solemn 
process,  by  which  this  statute  shall  be  executed,  not 
carelessly,  or  by  single  avengers,  or  without  the  consent 
of  mankind,  but  by  the  judgment  of  men,  by  witnesses 
and  judges,  as  afterwards  more  definitely  these  specifica- 
tions were  in  fact  added,  serving  as  a  signal  commentary 
on  the  statute  itself.  So  that,  even  if  you  render  it 
among  men,  you  gain  nothing  but  this,  that  in  all  prob- 
ability the  magistracy  itself  is  referred  to,  and  the  court 
of  justice  signified,  as  the  way  in  which  the  penalty  shall 
be  affirmed,  the  sentence  of  the  murderer  issued.  This 
would  be  the  meaning  if  you  render  it  among  men,  or 

29 


326  CAPITAL    PUNISHMENT. 

else  it  must  mean  simply  in  the  presence  of  men,  which 
is  the  sense  of  Vatablus  says  those  persons  wish,  who  in- 
terpret it  among  men  ;  "  Inter  homines,  that  is,  publice, 
et  in  conspectu  omnium,  cunctisque  viventibus,"  among 
men,  that  is,  publicly,  and  in  the  sight  of  all  persons  look- 
ing on.  This  would  not  in  the  least  degree  diminish  the 
force  of  this  statute  as  an  injunction.  It  is  impossible 
that  by  this  rendering  you  can  convert  the  death  of  the 
murderer  into  an  accident,  that  may  or  may  not  take 
place  among  men,  for  the  reason  why  it  shall  always 
take  place  is  given.  And  besides,  if  the  murderer  is 
put  to  death  among  men,  it  must  still  be  by  men  that  his 
execution  is  accomplished.  It  is  not  a  flash  of  lightning 
that  is  to  fall  upon  him,  nor  a  death  by  drowning,  nor 
any  sudden  and  fatal  pestilence  provided  for  the  murder- 
er, but  a  death  among  men  by  men,  by  witnesses  and 
judges.  Every  attempt  to  break  violently  through  the 
hedge  of  this  statute,  only  entangles  the  opponents  of  it 
more  helplessly  among  its  thorns. 

My  opponent  has  asserted,  with  astonishing  hardihood, 
that  the  Septuagint  translation  is  in  favour  of  this  ren- 
dering. So  far  is  this  from  being  true,  that  this  render- 
ing cannot  be  found  in  the  Septuagint  translation  at  all, 
which  omits  the  phrase  by  man  altogether,  and  simply 
says,  "  The  person  shedding  the  blood  of  man,  for  the 
blood  of  that  man  his  blood  shall  be  shed;"  giving  the 
statute  the  same  universal  form  of  injunction,  which  it 
has  in  the  Hebrew.  The  Septuagint  translation  is  as 

iolloWS  I     'O  «/c^«o)j/  at/*a  dvOpwiros,  dvrl  TOV  aiparos  aiirov  C 


COMMENT    OF    CALVIN.  327 

The  phrase  by  man  is  omitted,  and  it  is  simply  dvri  row, 
&c.,  which  cannot  possibly  be  rendered  except  by  the 
phrase/or,  instead  of  ;  and  if  the  words  TO  avToa  are  added, 
as  Le  Clerc  has  suggested  from  the  Complutensian  man- 
uscript, the  sentence  must  be  rendered  thus  :  the  person 
shedding  man's  blood,  instead  of  his  blood  that  was  shed, 
that  of  the  murderer  shall  be  shed.  This  Septuagint 
translation  therefore  powerfully  supports  the  interpreta- 
tion of  the  ordinance  as  an  injunction.  It  is  not  a  pre- 
diction that  in  the  course  of  Divine  Providence,  the  mur- 
derer will  die,  but  it  is  a  statute,  that  instead  of  the  per- 
son murdered,  the  murderer's  blood  shall  be  shed,  that  is, 
deliberately,  designedly  and  speedily.  Le  Clerc  himself 
interprets  it,  pro  sanguine  hominis,  ejus  sanguis  effunde- 
tur  ;  for  the  blood  of  man,  his  blood  shall  be  shed. 

My  opponent  has  also  gone  so  far  as  to  assert,  that 
Calvin's  opinion  was  against  the  common  interpretation 
of  this  passage.  Now,  so  far  is  this  from  being  the 
case,  that  Calvin  distinctly  says  that  in  this  statute  God 
arms  the  magistracy  with  the  sword  for  the  punishment  of 
murderers.  Calvin  renders  the  phrase  which  in  our 
common  translation  is  rendered  by  man,  in  homine,  in 
man,  and  he  does  this  simply  because  he  thinks  this 
phrase  was  used  to  mark  more  expressly  the  atrocity  of 
the  guilt  of  murder.  He  says  that  he  does  not  deny  that 
the  punishment  of  murder  with  death,  by  the  judges,  is 
here  meant,  but  that  more  is  meant.  God  prepares  other 
providential  executioners  of  his  law,  at  the  same  time 
that  he  arms  the  magistracy  with  the  sword,  in  order  that 


328  CAPITAL  PUNISHMENT. 


the  blood  of  man  may  not  be  shed  with  impunity.  The 
opinion  of  Calvin,  in  his  commentary,  is  so  clearly  and 
so  strongly  in  favour  of  this  statute  as  an  injunction, 
that  I  cannot  account  for  the  manner  in  which  my  oppo- 
nent has  hazarded  his  credit,  in  appealing  to  this  distin- 
guished writer. 

The  direct  and  natural  translation  of  the  passage  is 
by  man,  and  not  among  men  ;  so  did  the  Jewish  Targum 
of  Onkelos  render  it ;  so  did  the  Rabbins ;  so,  before  all, 
did  Josephus  ;  and  they  applied  it  to  the  magistracy  ;  and 
Le  Clerc,  to  whom  my  opponent  refers,  observes  that  the 
Hebrew  preposition  here  used  may  everywhere  (passim) 
signify  per,  by,  or  through  ;  though,  as  in  some  peculiar- 
ities of  Hebrew  construction  the  sense  of  inter,  or  among, 
may  be  admitted,  he  prefers  that  sense  in  this  place. 
But  according  to  Le  Clerc's  own  remark  on  the  preposi- 
tion, the  most  natural  translation  is  by  man  and  not  among 
men ;  as  it  is  also,  whosoever  and  not  whatsoever  ;  and 
with  these  two  poor  attempts  at  critical  ingenuity,  the 
power  of  torturing  upon  this  passage  is  exhausted.  Af- 
ter you  have  stretched  it  on  the  rack,  its  meaning  is  still 
the  same,  and  you  cannot  succeed  in  altering  it. 

The  climax  of  absurdity  to  which  the  proposed  ren- 
dering would  reduce  the  whole  statute,  as  a  mere  pre- 
diction, is  so  great  that  it  is  surprising  it  should  find  a 
single  advocate.  The  Divine  Being  has  just  been  utter- 
ing the  solemn  declaration  that  at  the  hands  of  men  he 
would  require  the  blood  of  man.  Now  if  the  question 
be  asked,  How  will  he  require  it  ?  how  will  this  threat 


IMPLIED   ABSURDITY.  329 

be  fulfilled  ?  this  proposed  interpretation  gravely  replies, 
Whoso  sheddeth  man's  blood,  that  man — WILL  DIE 
AMONG  MEN  !  Wonderful  conclusion,  most  wonderful ! 
The  murderer  will,  in  God's  providence,  die ;  and  not 
only  so,  but  among  men  he  will  die  !  And  this  is  the 
way  in  which  God  will  require  the  blood  of  the  murder- 
er  at  the  hands  of  men  !  And  not  only  so,  but  the  mur- 
derer will  thus  die  among  men,  because  in  the  image  of 
God  made  he  man  f 

In  fact,  neglecting  the  context,  and  attempting  to 
change  the  common  and  natural  translation  of  this  stat- 
ute, so  as  to  make  it  other  than  a  command,  you  fall 
into  such  absurdities,  that  it  is  only  necessary  to  state 
them,  in  order  to  strengthen  tenfold  the  assurance  of 
every  reader  of  the  Bible  in  the  faithfulness  and  accura- 
cy of  the  translation  as  it  stands. 

§  16.    THE    REASON   GIVEN    FOR   THE    PENALTY    MAKES    IT   ABSOLUTELY 
CERTAIN   THAT    THIS   ORDINANCE    IS   AN    INJUNCTION. 

In  fact,  the  reason  given  for  the  penalty,  stands  di- 
rectly in  the  way  of  every  possible  interpretation  of  this 
ordinance,  save  only  that  which  is  on  the  face  of  it,  as  a 
command.  It  is  not  an  accident,  nor  an  ordinary  occur- 
rence in  the  Divine  Providence,  whereby  the  blood  of  the 
murderer  shall  be  shed,  but  a  particular  and  perpetual 
determination  of  Jehovah,  for  this  reason,  that  IN  THE 
IMAGE  OF  GOD  MADE  HE  MAN  ;  and  therefore,  he  that 
defaces  and  destroys  that  image  by  murder,  shall  sol- 
emnly be  put  to  death.  This  putting  to  death  must  be 
29* 


330  CAPITAL    PUNISHMENT. 


among  men,  or  not  at  all ;  it  is  not  among  beasts,  nor 
among  angels ;  and  this  ordinance  is  itself  the  grand 
means  of  accomplishing  this  result ;  for  without  this  or- 
dinance murderers  would  no  more  be  put  to  death  than 
other  criminals.  Put,  if  you  please,  in  any  community, 
in  the  place  of  this  ordinance,  the  mere  prediction  you 
contend  for,  and  post  at  the  head  of  your  criminal  juris- 
prudence jUSt  this  ;  MEN  THAT  MURDER  WILL  CERTAINLY 

DIE  ;  and  then  see  if  on  this  account  murderers  die  any 
more  frequently  or  violently  than  other  men.  Indeed, 
your  mode  of  expounding  this  passage  reduces  it  almost 
to  a  laughable  absurdity.  The  wonder  is  that  you  have 
not  gone  one  step  farther  in  your  critical  sagacity,  so  as 
to  interpret  the  declaration  by  man  shall  his  blood  be 
shed,  as  signifying  simply  that  a  vein  shall  be  carefully 
punctured  in  the  arm  of  the  murderer,  and  a  number  of 
ounces  of  blood  taken,  and  then  imprisonment  for  life 
administered  as  the  sentence.  This  amendment  would 
be  no  more  ridiculous  than  the  other  expedients,  by 
which  you  seek  to  rid  yourselves  of  what  you  candid- 
ly  acknowledge  to  be  a  terrible  incubus  on  your  argu- 
ment. 

CONCLUSION. 

THE    RIGHT   MODE   OF   DIRECTING   PUBLIC    OPINION. 

The  statistical  argument  is  what  my  opponent  has 
mainly  relied  upon,  but  it  has  proved  to  him  unfaithful. 


NECESSITY    OF    SETTLING    GREAT    PRINCIPLES.        331 


Un  the  great  moral  and  scriptural  principles  connected 
with  this  subject,  the  adversaries  of  the  punishment  of 
death  for  murder  are  unwilling  to  dwell.  And  this, 
most  certainly,  is  a  mark  against  their  cause.  But  if 
they,  or  any  community,  are  averse  from  the  discussion 
of  such  a  question  upon  such  principles,  so  much  the 
greater  necessity  of  explaining  and  defending  those  prin- 
ciples. If  public  opinion  is  wrong,  it  is  only  thus  that 
you  can  set  it  right.  And  if  the  public  mind  be  greatly 
excited,  you  can  gain  nothing  in  any  time  of  commotion 
on  a  great  question,  by  withdrawing,  or  attempting  to 
withdraw  out  of  view  the  great  principles  around  which 
all  the  agitation  gathers.  That  agitation  will  continue, 
the  elements  will  forever  be  disturbed,  till  those  great 
principles  find  their  proper  place,  and  rule  in  all  minds. 
Push  them  forth  then  into  notice ;  make  them  more  and 
more  prominent ;  and  then  when  once  rooted  and  ground- 
ed, you  will  have  a  stable  foundation  for  good  order  to 
rest  upon.  Till  then  you  will  have  uncertainty,  revolu- 
tion, private  revenge,  and  the  horrible  despotism  of  the 
passions  of  the  multitude.  It  is  a  great  mistake  when 
you  shun  the  encounter  of  a  prejudice,  or  seek  to  allay 
a  commotion,  by  shutting  up  a  truth.  There  may  be  ig- 
norance and  prejudice  in  juries,  there  may  be  a  mistaken 
or  a  depraved  public  opinion  in  communities.  But  to 
give  up  great  principles  on  such  occasions,  or  for  such 
reasons,  is  just  taking  away  the  foundations  that  you 
may  save  the  superstructure.  It  is  nothing  but  the  es- 
tablishment and  reverence  of  such  principles  that  can 


33:4  CAPITAL    PUNISHMENT. 

preserve  aught  that  is  blessed  in  Church  or  State.  Ana 
it  is  the  very  madness  of  mock-prudence,  through  fear 
of  the  prejudices  or  passions  of  the  multitude  to  shuffle 
out  of  view  those  sublime  and  awful  truths,  beneath 
whose  powerful  sway  only  it  is  that  righteous  law  can 
be  supported,  and  the  passions  of  the  multitude  hushed 
to  repose. 

The  protrusion  of  a  great  principle  may  arrest  and 
excite  all  minds,  and  set  the  world  in  an  uproar,  but  it 
will  prevail  for  good.  It  is  like  throwing  a  vast  mount- 
ain of  granite  into  the  sea.  For  a  time  you  raise  the 
whole  ocean  in  fury  ;  but  wait  awhile,  and  you  see  the 
waves  that  rolled  in  rival  mountains,  retreating  from  its 
rugged  sides,  and  worshipping  around  it ;  and  on  its 
lofty  summit  you  may  fix  a  light-house  for  the  world. 
The  great  principle  given  by  Jehovah  to  Noah  in  this 
statute,  and  to  the  world  through  him,  is  such  a  lofty 
mountain,  sustaining  on  its  summit  a  light  of  life  and 
legislation  for  all  succeeding  generations ;  and  sure  we 
are  that  the  puny  efforts  directed  from  time  to  time 
against  it  will  prove  but  as  the  foam  and  agitation  of  the 
idly  raving  billows  in  the  ocean. 


1"" 


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